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Estate Practice: Clients and Multiple Jurisdictions Michael J Perkins BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Key Challenges Australians as global citizens - media commentary 1 in 4 Australian residents were born overseas 1 in 3 Sydney residents were born overseas As at the 2006 census in Armidale top 6 countries of birth were: Australia England New Zealand China United States of America Germany What assumptions can you make about the territorial connections of your clients? BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Estate Planning – What do we mean? “Estate Planning is a professional service (encompassing strategies, processes and actions) focused on the preservation and transfer of a client's wealth for the client and their designated successors” BUSINESS & ESTATE LAWYERS www.mjplegal.com
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What is your role? Advice and management services assistance with analysis and interpretation of legal and factual issues assistance with the planning and management of a client ’ s affairs Transaction execution assistance with the enforcement of legal rights and obligations, including ownership of property assistance with the authentication and assurance of title to property of any type BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Get To Know Your Client! Was the person born in Australia? Does the person hold dual citizenship? What is their migration status in Australia? Is the person subject to the law of another country, state or legal system? If so, how? Asset location Family location Citizenship Domicile Investment activity Central management and control BUSINESS & ESTATE LAWYERS www.mjplegal.com
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What is your Client’s Family and Social Heritage? Does any family member or legal personal representative of the person reside outside Australia? Is the person a citizen or domiciliary of any country other than Australia? Is the person a member of a non-Christian religion? Is the person subject to native title customary law or first nation based legal rights? BUSINESS & ESTATE LAWYERS www.mjplegal.com
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With What Territories Is Your Client Connected? Has the person worked outside Australia? Is any estate property located outside Australia? Is the person a trustee, agent, representative or fiduciary for another person and, if so, where is that person located? Has the person created a waqf which binds their estate? Has the person made arrangements for the management or co-ownership of property in any legal jurisdiction? BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Estate Review - Key Questions Do you own all rights in your estate assets? Can all elements of your estate be transferred to your successors? What is the limit to the jurisdiction of your will? How is your estate to be taxed? BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Will drafting issues Immovable property is governed by the law of its location Movable property is governed by the law of domicile of the will maker and includes: Bank accounts Intangible assets Contractual rights Other choses in action BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Estate taxation The citizenship of a client can affect taxation of the estate e.g. USA The domicile of a client can impose death duties on Australian estates e.g. UK Forced heirship can apply to Australian connected property e.g. movable estate of Australian resident non-domiciliary Central management and control can change BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Wills essentials A will must be valid by the law of its place of execution (s.48 Succession Act 2006) Deceased estates are taxed as trusts and therefore by the location of the trustee Align estate trustees with the location of assets whenever possible Consider if Australian tax rules apply to non-Australian operations of the estate Assess if inheritance tax will impact the estate BUSINESS & ESTATE LAWYERS www.mjplegal.com
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Estate Management Issues Management right changes can have taxation impacts. How is trustee succession to occur? How might Australian structures be impacted by a mobile family? Managing diminished or absolute incapacity can be more complex than death – how healthy is your client? BUSINESS & ESTATE LAWYERS www.mjplegal.com
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BUSINESS & ESTATE LAWYERS www.mjplegal.com Phone: 02 8022 4714 www.mjplegal.com
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