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Non-resident Beneficiary of Mum's Deceased Estate - Addressing a s 104-215?

Discussion in 'Wills and Estate Planning Law Forum' started by expatty, 11 March 2016.

  1. expatty

    expatty Member

    11 March 2016
    Likes Received:
    Hi, I grew up in Australia but moved OS a while ago and am a non-resident for tax purposes. My mum and 2 siblings still live in Australia and with my siblings, I am likely to be one of 3 main beneficiaries of my mum's deceased estate when she passes away.

    I was wondering if anyone can give me some help on how to deal with s 104-215 of the ITAA97 which sets out when a 'K3 event' occurs.

    It only applies to non-real estate assets (shares, managed investments, etc.) and my mum thinks there is enough real estate, cash and pre-1985 shares to distribute to me such that I get an equal 1/3 of her deceased estate and the K3 rule is not triggered. But I know my mum has not amended her will to make this clear.

    Assuming the will just says that my mum leaves all her assets to be divided between her 3 children, will the executors of will do so in the most tax-efficient way of their own accord? Or does she need to amend her will to expressly say that the division is to be done in a tax efficient way and give the executors of will a power or appropriation so they can decide on the division and avoid a K3 event from being triggered if possible?

    Any suggestions on how she might otherwise address s 104-215? I don't think she will want to create a testamentary trust and I am under the impression that their use as an efficient vehicle is not clear cut.

    Any tips greatly appreciated.
  2. CathL

    CathL Well-Known Member

    19 April 2014
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    ClareB likes this.

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