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Death & Taxes Conference

Published on 01 Sep 2022 | Took place at Hilton Brisbane & Online, National

With the client bases of many practitioners ageing, the complexities of asset holdings and family arrangements increasing, and the highest ever intergenerational wealth transfers now occurring, practitioners need to invest time in developing an understanding of the taxation of deceased estates.

This is an emerging market and opportunity for many, but equally one that has seen an unprecedented growth in litigation. It therefore presents risks and tax nuances that practitioners must manage and be alert to.

This year’s technical program addressed a range of topical content including the administration of estates, administering an SMSF on death, a deep dive into international issues for deceased estates, testamentary trusts, plus much more.

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Individual sessions

Estate income and administration – who is entitled and who bears the cost?

Author(s):  Michael FLYNN

This paper covers forensic examination of the taxation of the income of a deceased estate, with a discussion of the principles established in FCT v Whiting (1943) 68 CLR 199 and the Commissioner’s administrative views in Taxation Ruling IT 2622. 

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Death of members: to end or not to end an SMSF?

Author(s):  Nathan Yii,  Fe Guan

This paper covers an overview of issues to consider on death of a member as it relates to SMSFs.

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Navigating the super highway

Author(s):  Caite Brewer

This paper covers:

  • Superannuation and Post-Death claims
  • Binding and non-binding nominations
  • Trustee’s exercise of discretion, real and genuine considerations
  • Removal of trustees and
  • Other super fun stuff.
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The gift of life estates

Author(s):  Philip Bender

This paper covers the difference between a life tenancy and a right to reside in a property and why the distinction can be important.

 

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Taking on an Executorship – ethics, conflicts and other complications

Author(s):  Emma WOOLLEY

This paper covers:

  • The risks in acting as executor of a deceased estate, including when an executor may become personally liable for the debts of the estate
  • How executors may mitigate these risks and safeguard their interests
  • The tax implications of executor commissions
  • How to navigate potential conflicts of interest
  • The duties of advisors when providing advice to an executor
  • Can the executor always get their costs paid from the estate?
  • What happens when it all gets too hard – can an executor cease to act? 
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Managing Business Entities in Estate Administration

Author(s):  Andrew Smyth

When an owner of a business dies, what happens next? Businesses are owned by companies, trusts, partnerships, sole traders. How do these structures play out in an estate administration? What are the implications for the executors and beneficiaries? What are the implications for the other business owners and the business itself? This paper aims to review the business ownership structures from an estate administration perspective including:

  • Understanding impact death has on partnerships and other ownership structures
  • Applying the terms of a will to business structures
  • Administrative concessions applied by the ATO and elections required
  • Consideration of the personal representatives’ role in regards to the business (continuation or wind up)
  • Issues with preserving value; and
  • Impact of buy/sell agreements.
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International issues – Part 1

Author(s):  Adele Townsend

Dealing with the Australian issues associated with death and deceased estates is complex. Today it is increasingly common that people own assets worldwide both individually and in structures such as trusts and companies through to structures that may not neatly fit into the types of structures we see in Australia. This adds a whole new level of complexity dealing with not only the Australian tax issues but also the tax issues that may arise in a foreign jurisdiction. In this paper, we explore the international issues that are becoming more prevalent when a person dies with worldwide assets including:

  • Where is tax paid and is a credit available
  • Repatriating or distributing assets
  • Dealing with different structures; and
  • Who takes control and what is the residency impact?
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