NSW Mum wants will to pass to kids but prohibit sale of family home

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Above bored

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5 April 2018
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Mum's making a will - her main asset is the family home - in her will she wants to split equally residual assets b/w the 3 adult kids and for the 3 adult kids to share equally in the family home - but doesn't want the home to be sold (ie. to then have it pass onto grandkids....). I've done some mental gymnastics, and can see how tricky this could be, but is this even allowed/do-able in NSW? I've seen references to "dynasty trusts" on some US sites, but nothing in NSW.
 

Rob Legat - SBPL

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In Queensland you could do it via a life tenancy (although not So applicable if they don’t all live there) or via a testamentary trust. You’ll need a solicitor to do it properly, and expect to pay a decent amount for it to be set up.
 

Above bored

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5 April 2018
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Thanks Rob, fellow night owl. It seems like a veritable can of worms. The life tenancy/right to occupy is interesting - I appreciate that unless the 2 non-life tenant siblings receive some financial benefit during the life tenancy, they will certainly have some financial motivation to help cut short the life expectancy of the sibling with tenancy! With a testamentary trust, if the beneficiaries are the 3 adult kids (and their kids etc)... I can't imagine who would be a suitable trustee... and the situation would probably force the family home to be rented on the open market, with rent proceeds distributed between the kids - which misses the original purpose. Lots more reading, but many thanks for your guidance.
 

Tim W

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I agree with @Rob Legat - SBPL .
Testamentary Trust is well worth a look.
Save yourself the pain, and get her to a solicitor.
This is do-able, but it's not a DIY.
 

Above bored

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5 April 2018
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Thanks for the second opinion Tim, much appreciated. I'm a lawyer myself, but this obviously isn't my area. Given that under mum's will I'd be a co-beneficiary and co-executor, it wouldn't be a DIY, let alone throwing in the complexity of a trust. Mum relies on me a lot, and also generally doesn't trust/want to pay exorbitant lawyer fees! I really just needed a starting point.

So, if your replies had came back as "no, can't be done" - that would have helped me in deciding on whether to spend time/money chasing that path.

Your reply along with Rob's ie. yes it can/might be able to do... get a solicitor...expect to pay a decent amount for it - are helpful too - it just means a different conversation with mum.

I can't believe mum doesn't have a will. She really doesn't appreciate the complications of dying intestate. After going through my grandfather's probate last year, as well as the increased possibilities of Covid-19 cutting short lives, especially in older generations, it's really put the importance of having a valid will in focus.

Thanks again