Who should be appointed as an executor - Better the Devil you know(?)**

Previous posts have considered some of the key questions to ask in any estate planning situation - the following View articles also set out some of the key issues to be aware of:

https://viewlegal.zendesk.com/hc/en-au/articles/360036531992-What-is-an-executor-

https://viewlegal.zendesk.com/hc/en-au/articles/360036532092-Testamentary-trusts-overview

Generally it is critical to ensure the choice of executor is very carefully considered.

At a threshold level, an executor should be someone the willmaker trusts implicitly.

Other key attributes to consider can include:

1. Financial literacy and acumen;
2. Emotional strength;
3. Likely ability to perform the role in the worst of circumstances;
4. Age and health;
5. Previous experience;
6. Knowledge of and strength of relationship with beneficiaries;
7. Knowledge of and strength of relationship with other executors;
8. Residency;
9. Expectations in relation to payment;
10. Overall willingness to act.

The executor of the will is also known as the trustee. While the trustee of the testamentary trust is often the same as the executor, it can however be someone different.

Generally there can be up to 4 executors appointed at any one time. Particularly if only one executor is appointed initially, having at least one back up is generally advisable.

As usual, please contact me if you would like access to any of the content mentioned in this post.

** for the trainspotters, the title today is riffed from the Kylie Minogue song 'Better the devil you know'.

View here:

Why a willmaker’s domicile may trigger a step back in time**

Where a person is domiciled is one of the more difficult and potentially frustrating areas of the law.

A key reason the issue can be so problematic is due to the rules in relation to ‘conflict of laws’ – that is determining which rules apply when there are two or more potential jurisdictions in relation to a certain set of circumstances.

The conflict of laws regime is inherently problematic and one of the most highly specialised of all legal disciplines.

In very broad terms, a person is domiciled where 'their heart calls home'. This means that they need not necessarily be physically located there or indeed have any assets in that particular jurisdiction.

The issue of domicile can arise in a number of situations.

In an estate planning context however, most of the complex issues in relation to domicile only arise in situations where people die without a will (i.e. intestate).

One of the first steps therefore that should be looked at as part of an estate plan where the place of domicile may become an issue is to at least get in place temporary estate planning documents as a matter of urgency.

As usual, please contact me if you would like access to any of the content mentioned in this post.

** for the trainspotters, the title today is riffed from the Kylie Minogue song 'Step back in time'.

View here:

Spinning around?** - Joint tenants and bankruptcy

Previous posts have considered the distinction between owning an asset as joint tenants compared to tenants in common, let me know if you would like access to this content.

From time to time, we have advisers, on behalf of their clients, contact us about whether there is any advantage in ensuring an asset is owned as joint tenants so as to try to prevent a trustee in bankruptcy getting access to the asset.

The argument being that because each joint tenant effectively owns an interest in the entire property, this makes it very difficult for a trustee in bankruptcy to seize the property.

The reality however is that under the Bankruptcy Act, as soon as a person who owns an asset as joint tenant with somebody else becomes bankrupt, the joint tenancy is effectively severed, so the trustee in bankruptcy can unilaterally secure their ownership of the relevant share of the property discretely.

Where a trustee in bankruptcy gains ownership of a discrete share of a property, the remaining co-owners are able to negotiate with the trustee in bankruptcy to acquire it for market value.

The trustee in bankruptcy is however not obliged to accept the offer from a co-owner, and can proceed to sell the property on the open market.

Even if the co-owner wanted to oppose such a sale, the trustee in bankruptcy can obtain court permission for a statutory sale.

Following the statutory sale, the co-owner and trustee in bankruptcy share the proceeds in accordance with their proportionate ownership interests.

** for the trainspotters, the title here is riffed from the Kylie Minogue song ‘Spinning around’.