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• This is a tax on the increase in value of assets that are not exempt.
• The way it works is that half the increase in value from when an asset is bought or received to when the assets is sold or transferred is added to the sellers other income in the financial year of the sale/transfer.
• It is payable whether you receive funds for the transfer or not - so if you gift a liable asset without receiving anything, you still have to pay the tax.
• Principal place of residence is exempt from capital gains tax.
• Only applies to assets on which the ownership changed after 19 September 1985.
• Death doesn't create a liability to pay the tax but is a change of ownership so that assets originally bought before 1985 now become liable for tax on any increases (from the date of death).
• if the asset was bought by the deceased after 1985, you inherit his/her liability (if any) although you don't have to pay it until you sell or transfer the property.
• if the asset was the principal place of residence of the deceased, you have up to 2 years from the date of death to sell without having to account for any increase from the date of death to the date of sale. The sale has to be completed, not just contracts exchanged, within that time. You can pocket any increase in value in that time.
• if you sell after the 2 years, any increase in value from date of death to date of sale is liable for capital gains tax in the hands of the beneficiaries.
• you are allowed to deduct the costs of getting the asset into your name and the sale costs.

• Death duties were abolished in 1981 for any person dying after that date.
• Capital Gains Tax is considered by some to be a form of death duties.  I have given a short resume of this below.

• A “Grant of Probate” comes from the Supreme Court and is the official acknowledgement that on the available evidence:
  • the deceased is in fact deceased
  • a will is the last will of the deceased
  • the executor is authorised to collect assets from persons holding them on behalf of the deceased.
• Probate is granted by the Supreme Court (although you don't have to go to court unless there is a dispute about the will)
• People paying assets of the deceased to the Executor named in the grant of probate are protected from future claims by other persons even if the probate is overturned by
• Probate can be revoked if the will is proven to be not the last or other defects found in the process (ie. the person is not dead).
• in that case the Executor may have to pay the money back to the estate (even if they have paid it out to other beneficiaries - the Executor would then have a right to take action to recover from such beneficiaries).

• Any person who is old enough to give evidence in court; .
• can't be a beneficiary to the will or the spouse of a beneficiary (de facto spouse may be included in that category). If they do witness the will they can't get their share although the rest of the will, will not be affected.
• The task of the witness is to see the person making the will (Testator) sign the will and to then sign themselves. They don't have to know what is in the will. By signing they are effectively saying they were present and the Testator appeared to be signing of his own free will and appeared to understand that he was signing a will. The Testator can sign before the witness is present and then acknowledge his/her signature when the witness is present. The witness is entitled to ask questions of the Testator to be satisfied he understands.

• Any adult person can be the Executor (over 18 years).
• There is no limit on number but more than 2 might become unworkable. Common to appoint one with an alternate if the first can't or won't take on the task.
• must be a named or definite person
• The Supreme Court normally require the Executor resides within NSW or be able to give an address for service of documents in NSW.
• Usually you would want someone you can trust and who has some experience in dealing with assets. The duties may involve selling assets and making decisions as to the price and method of sale.
• A solicitor can be the executor either alone or with other executors. It is sometimes a good idea to appoint your solicitor with the other executors as a 'referee' in case of disputes.
• The NSW Trust & Guardian (formerly Public Trustee) or a private trustee company can be executor.
• a beneficiary can be the executor and it is common to appoint the person receiving the largest interest as executor.
• it is not a good idea to appoint a person who may have a conflict with the other beneficiaries.
• a person who is to receive a life interest should not be appointed as executor as the estate will continue until after they pass away.
• a person who may wish to purchase an asset from the estate may not be a good choice as he can't buy from himself without a specific clause in the will or the consent of all the other beneficiaries (who would all have to be adults) or court approval.

• When someone dies, the Executor is the person who has responsibility to find out what their assets and liabilities are, pay all the debts and then distribute the balance in accordance with the will or the laws ofintestacy.

Executors other duties include:

• arranging the funeral
• lodging taxation returns and making sure all tax is paid (the Executor is personally responsible for any unpaid tax).
• take control of any business or farm and ensure that assets are not lost or stolen or perish.
• if necessary, sell assets to raise funds to either pay debts, taxes or distribute to beneficiaries.
• distributing the assets to beneficiaries (or the proceeds of sale of the assets).
• keep financial accounts of what has been done.

• You must be 18 to make a will.
• you can also make a will if you are married below that age. In NSW you have to be 18 to marry unless you have a court's permission.
• a will made in contemplation of marriage would become valid when you married, even if you were under 18 when you made it.
• the Supreme Court can give permission to a minor to make a will.

• must be in writing
• signed by person making will (called the testator) with the apparent intention of approving the will (usually at the foot of each page)
• if testator is weak, his hand may be assisted to sign
• signing by another person in the name of the testator is permitted as long as testator present and directs that it be signed. This allows a person who is physically disabled to make a will. This other person may also then be a witness to the will.
• if testator unable to read, may be read over to him in presence of witnesses.
• testator's signature must be witnessed by (at least) 2 persons who then sign themselves - all in the presence of each other.
• all should use the same pen as testator to avoid suggestions that they signed at different times.
• witnesses should print their name and address under signature so they can be found if necessary when the testator dies. They would normally only be needed if there is some doubt that the will was signed properly.
• witnesses can be any person old enough to give evidence in a court - not necessary to have JP or similar).
• witnesses cannot receive a benefit under the will nor can their spouse (if witness or spouse named in will, the will is still valid but they or their spouse can't get the benefit).

• Yes. Your will is valid whether made with or without the assistance of a solicitor or Trustee, as long as it meets the technical requirements. (see below).
• The usual problem with homemade wills is that they are typically made as if you are about to die but when you do die (hopefully years later) everything has changed:

  A home made will might say "I leave my house at Hurstville and my Commonwealth Bank account to my wife Mabel, any other money to my sister and my car to my son". This might be fine at the time but what if you have sold the house at Hurstville (perhaps it was sold by your Power of Attorney because you are in a nursing home), the Commonwealth Bank is now called the Murdoch Bank and there is no car ? - the effect of the will, will be completely different. The money from the house will go to your sister and your wife and son will get nothing.

• An experienced solicitor would be less specific with assets and have thought of the possibility that the house might be sold and turned into cash and that the bank details may change.

• This order was changed substantially by a law that took effect in relation to anyone who died after 1st March 2010. One of the substantial changes is that the law now recognises the possibility of leaving multiple spouses (ie. One legal and one or more de-facto spouse).
• If deceased left a spouse and either no children or only children of that spouse and the deceased, the whole estate goes to the spouse;
• If there is more than one spouse but no children (say a legal spouse and also one or more de-facto spouse(s)) then they share the estate equally;
• If there is a spouse and children of another relationship, the spouse (or spouses) share the first $350,000 of the estate and half the balance. The children get the rest.
• If no surviving spouse but children then such children get the whole estate equally. If any children have died before the deceased but have left children of their own ( grandchildren) then the share passes down the line ie. to their children and if any of them have died, to their children etc.
• If no surviving children, grandchildren or spouse, then it passes to parents.
• If no parents then to brothers and sisters. Like children, if any of them have passed away before the deceased, their children take their share (nieces and nephews).
• If no brothers and sisters, then to grandparents.
• If no grandparents then to uncles and aunts and like brothers and sisters, their children (cousins) get the parents share if the parent died before the deceased.
• If no uncles and aunts (or children of any deceased uncle or aunt) then it goes to the state government.

• When you die without a will, the legal term is "to die intestate." The estate only goes to the Government if you have no relatives of the required categories. In the next item, I have set out the list of relatives in order. If there are no relatives in one group then it drops to the next group and so on. If there are relatives in a higher group then those on the lower group get nothing. The word spouse means either legal spouse or de facto spouse (see next).
• if you don't have a will the persons entitled have to be established by documentary evidence such as birth, death and marriage certificates. These can sometimes be difficult to obtain if the events took place overseas or the details are unknown.
• in your will you name the Executor. If you have no will the person who deals with your assets may not be your choice. There may be a dispute amongst beneficiaries as to who should administer the estate.
• if any beneficiaries are under 18, the court will require the administrator obtain person guarantees (sureties) from two other persons. Those persons then become liable if the funds ‘disappear’. There may not be many people who are prepared to give such a guarantee.

• Your will is your chance to say what you want to have done with your property when you die.
• It is a document that only comes alive when you die.
• It is only the last will that operates and there is no limit to how many wills you make.
• A will can always be revoked (cancelled) or changed at any time as long as you have capacity.
• Your will can also contain your wishes for your funeral and disposal of your body.