Asset protection seems to be a recurring topic with clients over the past few months.
Although we are not lawyers the same issues seem to crop up.
So let’s have a look at the top issue of asset protection that every property investor should consider:
1. Should I have a will?
The answer is yes if you want to control who gets what and not leave it to the government or the courts.
A will is only activated after death.
People should also consider writing up an Enduring 2. What does my Will cover?
Wills only pass on assets that are in your name i.e. your estate.
Your will also appoints who you want as executor/s, who will then carry out your wishes.
Executors take on legal responsibility, so the nominated person can decline, maybe after your death, so it is a good idea to have a fallback person/s.
The executor can only carry out what you say in your will and not what they think you wanted.
It is therefore imperative that you carefully consider your wishes and have them properly documented.
If you have a financial binding agreement (pre-nuptial) then you must note that on death your will takes precedence and without a will then the distribution of your estate will be as per government legislation.
3. Non Estate Assets
These are assets not in your name.
These principally include your superannuation and Assets in a Trust. 
For superannuation, normally a Binding Death Nomination (BDN) is made where you advise the trustee of the super fund and what you want to be done with your super assets.
Typically it directs the super assets to go to your estate and be handled via your will or to go to people/s direct.
You can even keep the funds within Super for someone else’s benefit.
Without a BDN the superfund trustee has to authority to distribute as they please within limitations e.g. your estate or to dependents.
Care is needed as many BDNs can be easily overturned by the courts if someone objects that they did not get something or enough.
Also, note that divorce or marriage does not necessarily delete the operation of a BDN.
There are also tax implications depending on who Super money is distributed to on your death.
In summary, your spouse or financial dependents receive monies tax-free but non-tax dependents such as adult children may have to pay some tax on some of the distribution.
For assets in a trust, you need to pass control over to someone.
Control comes from the position of an appointor of the trust and a Memorandum of wishes should be prepared to identify who will become the appointor upon your death.
If you have a company as trustee then the shares (estate assets) in that company will need to be distributed on your death.
The new appointor can then decide to keep that company as trustee and if they are also the shareholder (your will passed the shares to them) they can then appoint themselves as directors.
In this scenario legal title of assets held by the trust e.g. a property does not change and so it can be much easier managed upon your death.
4. Type of will?
Typically people prepare a will and send assets to individuals.
These new owners now own the assets.
There is no CGT or 5. Capital Gains Tax
The use of a testamentary trust can also be useful if you leave an asset e.g. a property to multiple people where some may want to “take the money and run”.
In this case, as the owner does not change i.e. the trust then as someone is bought out there would normally be no
If the recipient of an asset sells then CGT is calculated differently depending on the original acquisition date of the asset.
If the asset is a pre CGT asset then its cost base changes to its How to protect assets in your own name
Disclaimer
This article is general information only and is intended as educational material. Metropole Wealth Advisory nor its associated or related entitles, directors, officers or employees intend this material to be advice either actual or implied. You should not act on any of the above without first seeking specific advice taking into account your circumstances and objectives.
