ENCORE: Secure Your Legacy: Clear Legal Advice from Greg Russo

Ever wondered what legal documents you need to have in place before you die? Or how to handle your assets and loved ones when the inevitable happens? In this episode of "Don't Be Caught Dead," I'm joined by Greg Russo, one of Victoria's most experienced and respected succession law solicitors. Greg shares his journey into law, driven by a love for maths and logic, and how he found his passion in succession law—a field where numbers meet human stories.

We dive deep into the essentials of succession law, discussing everything from wills and superannuation nominations to powers of attorney and advanced care directives. Greg explains the importance of having the right documents in place to ensure your assets are managed and your loved ones are cared for when you're no longer able to do so. He also sheds light on how to plan for your financial future and the guardianship of your children if you die or become incapacitated.

Get ready to learn about the nitty-gritty of succession law in a way that's clear, engaging, and relatable. Greg's insights will not only help you understand the legal landscape better but also empower you to make informed decisions about your future.

Key Highlights:

• Understanding the importance of wills and superannuation nominations
• The role of powers of attorney and advanced care directives
• Planning for the guardianship and financial future of your children
• Insights into managing your business and personal assets after death or incapacitation

Resources Mentioned:

• Contact Greg Russo via his website here

Remember; You may not be ready to die, but at least you can be prepared.

Take care,

Catherine

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Transcript

Greg Russo: 0:00

Being reminded every single day about mortality, I am drafting wills, I'm doing deathbed wills, I'm administering someone's estate, just constantly being reminded about mortality has become incredibly life affirming because it's a reminder that it's all going to end one day and who knows when and who knows how long we've got and so for me it's just an absolute no brainer and it's not that hard. to make provision for that. A lot of people that don't do the job that I've got, that don't have the luxury of being reminded every day about mortality, is just a refusal to accept that. And it's not a criticism, there's no value judgments in that observation, but you ask most people just to start talking about death, and they're just not comfortable. We're not comfortable having the conversation about ourselves, about not being here. And you know, of course we worry about our kids, and we just can't face it, can we?

Catherine Ashton: 0:52

Welcome to Don't Be Caught Dead, a podcast encouraging open conversations about dying and the death of a loved one. I'm your host, Katharine Ashton, founder of Critical Info, and I'm helping to bring your stories of death back to life. Because while you may not be ready to die, At least you can be prepared. Don't Be Caught Dead acknowledges the lands of the Kulin Nations and recognises their connection to land, sea and community. We pay our respects to their Elders, past, present and emerging, and extend that respect to all Aboriginal and Torres Strait Islander and First Nation peoples around the globe. Today we are speaking with Greg Russell, one of Victoria's most Experience and respected succession law solicitors. I had the privilege of meeting Greg earlier this year when I had the idea to put together a guide, what to do when your Loved one dies. So I reached out to Greg, uh, because I needed someone to make sure it was, its legal. Since then, I have had quite a few occasions where people have come up to me and asked, What are the legal ramifications of this question or that question? So I thought we would get Greg back on the show to, Oh, sorry, I should say, Greg on the show for the first time to actually answer some of your questions. Welcome to the show, Greg.

Greg Russo: 2:32

Thanks, Catherine. Great to be here. Thanks for inviting me on.

Catherine Ashton: 2:37

So tell me, how did you get involved in law?

Greg Russo: 2:40

That's a good question. It's got a short answer and a long answer. I'll give you the short answer. I was a very good student at school and I had a father who was very keen for me to, uh, to do medicine. Or law or engineering, which he saw as, you know, would be, would, would, would set me up very well. And I just love maths. I love numbers and maths and logic. And I negotiated with him and he said, let's, you know, I want you to do medicine. Why don't we look at that? And we argued about that. And I kept coming back. I just want to do science. I want to do, do numbers. I want to, I want to learn about maths. So in the end, I, I, I read a lot as well as having a love for maths. So he and I struck a deal. He said, do science and law. And if you don't like law. You can drop it. So that's how I ended up starting the law degree. I think with a lot of people, maybe of my generation, we weren't exactly sure what we wanted to do. So I finished the law degree because I started it. And then I started working in the law for a couple of years, and then I was going to go and do a PhD in maths. But it kind of got me interested in it. It's sort of, I kept learning new things. And it was about 15 years ago that I I started working exclusively in this area that we're going to talk about today, succession, and it's the one area of the law where a lot of the logic and the maths and the numbers comes into play. You have to be very good with understanding the consequences of finances and tax. It's an area where there's a lot of old law, so we still quote cases from the 16th and the 17th and the 18th century, but it's one where you have to keep absolutely up to date. And on top of all of that. There's a real human element to it. Um, your guide is a kind of a, a guide which is robust in the information it gives, but it's designed as I understand it, and certainly having worked on it with you, that it's meant to be a very pragmatic, document for people at a time when they're at a very low ebb, when they've, they've, they're about to, or they've just suffered a tragedy. So the same with me, it's, it's a real privilege for me to be able to be there for people at what is a really bad time in their life and to kind of just be the objective, rational person, say, yes, okay, this is what you need to do. This is how you do it. And this is the process. I really take that as an absolute privilege. So that's the short version.

Catherine Ashton: 4:52

Well, that makes sense, because from where I sit as the host of this show, I've heard many stories about the emotions associated when someone dies, and just how vulnerable people are, and to be an expert about it. that someone can trust and look to for guidance and support at that time is really, really valuable. It's great

Greg Russo: 5:16

to be able to do. Yep.

Catherine Ashton: 5:19

So let's launch into some of the questions that we've received. Uh, looking at legal documents that we should have in place prior to death, what are the important documents that we should have and why are they important?

Greg Russo: 5:33

Yeah, so it's a really good starting point. And so what you have to think about is. Death from a succession perspective is about change of ownership or change of control. So I'm alive. I own my car. When I pass away, what's going to happen to the ownership of my car? I'm alive. I'm a member of a super fund. When I die or lose capacity, what's going to What happens to my super fund member balance? What happens to the running of the fund? I'm running a business. I die or lose capacity. What's going to happen. So the answer to the question is what documents you need is the answer to that question is what documents do you need in order to continue the ownership of assets while you're incapacitated and in order to transfer the ownership or control of assets after you pass away. So you definitely need a will to deal with things that you own. You need. Super nominations to deal with super because you don't actually own your super. That's that's that's another session. But you need super nominations to deal with your super. You need to have made arrangements in relation to your business. People often enter into business succession plans, and you need to have made arrangements in relation to trusts. They all cover the. Circumstances about what happens when you die, and then sort of mirrored to that, if you're covering also what's going to happen if you were to lose capacity, the ability to make decisions, there's a whole another set of documents which mirror those that we generally refer to as powers of attorney, guardianship documents, depending on what state you're in, powers of attorney, guardianship documents, advanced care directives, Medical treatment plans, things like that. So you need wills and those sort of documents and you need powers of attorney and those sort of documents.

Catherine Ashton: 7:16

So just to make it clear in my head, if I had a child who was under the age of 18. And if I was to become incapacitated or die, what would I need in place for them?

Greg Russo: 7:31

Okay, so what, what wills and powers of attorney are really good at dealing with is assets and ownership. What they're not so good at dealing with is the care of children under the age of 18 after your passing or after your inability to care for them. The, the, the, the care of children after 18 from a guardianship perspective is generally dealt with in the family court or the children's court depending on what, what, what, what jurisdiction you're in, but you certainly can in your will, you can express a desire. You can say, look, uh, if I was to pass away and there's no other guardian, my son, Bob, I notified, it's, it's my desire that, that my sister and brother in law or whoever it is. Um, yeah. would be his testamentary guardian. So you can certainly make a recommendation and the court would, would look at that if it was asked to and say, wow, here's the person that loved Bob the most in the world. And they recommend that such and such and such and such be appointed his guardian. And that probably won't be countermanded. The other thing you can do in wills is you can look after the, Bob's financial future by creating trust and things like that. So you can allocate money, but that's sort of separate. That's, that's, that's under a will and executor looking after Bob's financial interest because Bob, while he's under 18, can't give a receipt. So he can't receive any money from your estate until he turns 18 as a minimum. So. With these sort of documents, you can make recommendations and express a desire about guardianship and you can put in place testamentary trust and financial care and you can do those across both documents.

Catherine Ashton: 9:08

Music Have you recently had a loved one die or know someone who has? We recognize this time can be very challenging for you, and you can feel quite vulnerable and not know what to do. We certainly didn't know what to do. That's why we have developed a resource for you called My Loved One Has Died, What Do I Do Now? This resource guides you through the steps you need to take in the first few hours, days, Weeks and months after a loved one has died, a link to the guide, my loved one has died. What do I do now can be found in the show notes of this episode. Talking openly about death and grief can sometimes be triggering. If you find you need support. Please reach out to our support services and the bereavement organizations listed on our resource hub. All links are in the show notes of this episode. Okay. That's good to know. And tell me, there was also documents you mentioned in a, like, like powers of attorney, advanced care directive, advanced plan. Could you just sort of give us an example with those? I know it's quite complex, but as best as you can.

Greg Russo: 10:34

Yep. Yep. So what you learn once you start digging below the surface is that the word capacity is just this group word that from a legal perspective covers a lot of different types of capacity. So there's capacity to do a will, there's capacity to make financial decisions, There's capacity to make medical decisions. You know, if you need to have an operation on your, on, on your foot, you have to make informed, you have to give informed consent to the doctor. You have to have capacity to make medical decisions to do that. All right. So if you ever die, wills come into effect and other, you know, things like biting death nominations, if you lose. So, so if, if, if you've got capacity and you're alive, you make your own medical decisions. Make your own financial decisions. Look after your own kids. If there's that period of time between being mentally competent and alive and not being here anymore, if you lose one or other of your capacities, and you could lose one, you could lose the inner, you could lose the ability to make financial decisions, but still be really clear about what you wanted medically. If you lose one or other of your capacities, there are, uh, there Um, mechanisms that you can put in place while you've got capacity or that can be put in place for you after you lose capacity that can allow a substituted decision maker to make decisions for you. So, a power of attorney is that term is generally understood, generally refers to financial decision making authority. So, if I appointed you, Catherine, to be my attorney under a power of attorney to make financial decisions subject to the terms, if I then lost capacity, You would step into my shoes and make financial decisions for me. And then there's this whole family of documents that you can use to assist in your medical care at a time when you might not be able to express a desire to communicate or have capacity to make decisions. Depending on what state you're in, you might be doing a medical treatment decision maker appointment. You might be doing a medical power of attorney. You might be doing an advanced care plan or an advanced care document of some sort and ultimately you might be doing documents to assist with the voluntary assisted dying process which is also available in, in, in each state. So those suite of documents, in different ways, are a way of you, while you're competent, setting in mechanisms. and appointing people to sign off written consent for operations and other medical procedures, dental procedures, but also in appropriate circumstances to make an end of life decision for you. And so those advanced care plans talk about things that you would like to happen. You know, I, I, I would like to, to, uh, be able to experience a particular religious service once a week or I don't want my brother to come and visit me. Things like that. Things that you can express a desire about, but also you can, you can put in stipulations. You can say, I am not to have blood transfusions. You know, I'm not to receive chemotherapy. You can put out black areas where if. those procedures that are undertaken would constitute an assault. So with those documents, you can achieve a degree of future autonomy at a time when you have lost decision making capacity. Um, generally state by state, so you need to sort of look carefully at which state you're in and what the relevant legislation says.

Catherine Ashton: 13:51

And so, the first thing that comes to mind for me is about resuscitation as well. That would be covered under that suite of documents, wouldn't it?

Greg Russo: 13:59

Yeah, there are some, some states have specific rules about that and specific forms, you know, not to be, because it's such a common one. It's a great one to raise. Tick, I do not want to be resuscitated. And I guess the other thing to say here is this. It's always a good idea to. Not be paranoid about this, but to think about your own circumstances and to put as many checks and balances in place, because what you want to do is you want to remove the necessity for judgment calls to be made by the medical profession, if possible, because some doctors and some nurses and some health providers are fantastic. Others are not so, and it's a bit of a luck of the draw. So the more directions you give, I do not want to be resuscitated. I do not want to be kept on life support if, if, if that's what you want. And the more directions you can give that are on your medical file, the easier it is for the medical staff to respect your wishes.

Catherine Ashton: 14:52

And that

Greg Russo: 14:55

also goes for organ donation, wouldn't it? Yeah, organ donation is a little bit tricky. So you almost have to have a tattoo, I reckon, saying I'm an organ donor because it's just a practical problem, that if you, if it's important for you. that you're able to donate your organs, then you need to make sure that medical staff are aware of that. So that there is a, you know, pre death communication about that. And sometimes people die in circumstances where it's not clear, you know, there can be an organ donor card, uh, that can be kept in a wallet and there can be a search done, but it's a bit hit and miss. Bottom line is if there is no positive understanding that you are an organ donor, your organs won't be donated and it might not be learnt until there's a meeting with the family sometime after death, at which time it might be too late. So it's important I think if you do want to donate your organs that you, there are processes for you to sign up and to register and then that you notify as many people, your GP, your specialist, your family members, anyone that's likely to be involved with your organ donation. Passing and notify them that make sure you tell people that I want to donate my organs because otherwise it might be an opportunity lost.

Catherine Ashton: 16:08

I think what I hear with stories being told to me is that whatever our wishes seem to be, it's always good to have conversations about them because sometimes those assumptions can vary. According to family member as well.

Greg Russo: 16:25

Oh, absolutely. So, um, people, people wanna do the what they think is right, but the, the, the clearer you make it, the better. My, my, my father passed away three or four years ago, and he was very clear about what he wanted. And even though it was a pretty tough decision to make, we had the, the knowledge that this was okay, this is what he wanted. This was something that he would've consented to. And he would've, he would've, you know, he would've allowed, he would've, he, it was almost like he was sitting there going, yeah, it's all good. That's, that's, that's fine. At a time when he could no longer. Communicate. The other thing to say about that, Catherine, is as many conversations as possible is important because at the end of the day, the medical profession is as much a vocation as a profession. People that, that go into and stay in the medical profession are there because they love the work. And the clearer you can be about what your expectations and wishes are, the more readily, They'll be able to enforce those and the more readily they'll want to, you know, if I've got a client who's really clear about what's something that they want, I mean, it just really makes an impression on me. And it's the same with the medical profession. So yeah, bang aloud, ring it, ring a loud bell.

Catherine Ashton: 17:30

Yeah, I totally agree with you. Now, next of kin. That always seems to me to be quite a tricky one because the definition depends on what states. Can you talk a little bit about next of kin, what it means and what those implications are? Yeah,

Greg Russo: 17:47

it's a really good example to just sort of reinforce that point that you and I've already made individually about having a good, having a good think about these things and putting checks and balances and protocols in place. The next of kin is at, at its fundamental is just a fallback position. The law operates on the basis of presumptions, you know, presumption of innocence, um, presumption of, you know, whether a will's been destroyed or not, and a presumption as to who the person should be, Talking on your behalf when you can no longer speak or communicate, and that's your next of kin, and it does vary from state to state, it's usually the spouse, it's in the absence of a spouse, it's usually the oldest child, you know, a parent, if there are no children, a sibling, and it's, it's, it's, it's worked out based on proximity on a family tree. The next of kin is generally supplanted. If you, um, nominate an attorney, if you nominate a medical treatment decision maker, if you nominate an executor, but if you don't have one or other of those people, then the next of kin will be asked to come in and make a decision. And that might be okay if there's an intersection between who they are and who the best person to make the decision is, but often that's not the case. So, if for no other reason than having the right decision maker, Making these hard decisions for you, these sort of documents that we've been talking about are absolutely essential.

Catherine Ashton: 19:17

I suppose the first thing that comes to my mind is the amount of blend of families we have nowadays. And sometimes the conventional structure of next of kin may not be appropriate.

Greg Russo: 19:29

Yeah, no, that's a really good point that the next of kin formula didn't, didn't, uh, was, was, was created at a time when blended families just didn't exist, I think. So, yeah, quite often the second spouse and the siblings will be in violent disagreement. And of course, what that does is it sometimes Exacerbates a conflict that already exists, but often it creates a conflict that otherwise didn't exist. And so, yeah, and if I'm in a blended family and I'm being sensible and pragmatic about it, I might recognize that my partner may have different views than my son. And you know what, if I'm pragmatic and sensible, I'm going to sit down with the two of them and say, right, You know, I'm not going to be here forever. I've had some bad news. What are we going to do about my burial? What are we going to do about this? What are we going to do about that? And to put it all on the table, because a lot of these disputes that occur during incapacity or after death have to do with what it is presumed I would have wanted. If I was still alive and the best way of addressing that is to talk about it while you still can and resolve those before they rise.

Catherine Ashton: 20:35

Yeah, and I'm assuming you've seen quite a bad scenario or quite, quite a few. Uh, if they're arriving at your office that there might have been disputes where you just can't. come to an amicable solution. Oh yeah, I mean it's, it's

Greg Russo: 20:51

a horrible observation but to a degree it's my bread and butter that we do, we do, you know, one of the cornerstones of my practice for the last, you know, 15 years has been negotiating, litigating and trying to resolve estate disputes. And of course an estate dispute, whether it's over, You know, the burial of a body, or the disposal of a body, or the distribution of an estate, or something that seems quite bizarre and quite discreet, whatever it's about, an estate dispute is, it's a horrible dispute, and it's a really hard dispute to run because it's like watching a movie where you've scrubbed out the main character or reading a play and all the lines of the main characters because the main character is not there. If it's a dispute about me, there's everyone saying what Greg would have wanted, what Greg would have wanted, but I'm not there. And so it just, it's just layer on layer of hearsay. So yeah, very, very challenging, very tough. And the more direction and the more communication you can have whenever, as early as possible, but certainly towards an end of life situation, the more pragmatic you can be about what will happen, not, you know, I'm not going to live forever. So what will happen next year when I'm no longer around? This, these are the things that are important to me. These are my expectations. And I know the two of you don't get on, so let's sort it out now. You know, the more discussion you can have, the better. And then you back that up with some really solid documents that give authorities that can't be countermanded. And you're not relying on an archaic formula of next of kin that was designed, you know, a hundred years ago.

Catherine Ashton: 22:26

And that brings me to my next point, and, you know, how early should we be planning for this? At what age should we be writing a will?

Greg Russo: 22:36

Oh, I'm a, I'm a will writer, so you should write a will as early as possible and you should update every year. Now, I think, look, I think it's about, I mean, it makes sense to have a will. A lot of people think they don't need one. If you don't have a will, there's a formula, an intestacy formula, but nobody has any authority to do anything for you until a court orders it. Whereas if you have a will, the will speaks from the date of death. It comes alive, it appoints an executive, and it starts organizing things. So, even if you've got a very basic will, You know, for adults that don't have family, that don't have, you know, a partner and children, just a will that says, I appoint my parents as my executors and my beneficiaries, or I give everything to charity, whatever. A very basic will. There, there, there should be something in place, I think. And then you'd look at reviewing it and updating it. Anytime there's a significant Life event, like a marriage, marriage revokes the will anyway, so like a marriage, a separation or a divorce, birth of a child, an increase in wealth, an increase in complexity of financial position, anything like that, and, you know, we, we, we, we keep it simple, keep it as simple as possible, but, you know, sometimes, Catherine, it seems like there's no such thing as a simple will anymore, because, Everyone's financial position is so complex. So many people have self managed super and they've got a trust over here and they've got a business over there and they've got assets. They went to, you know, the UK and they, they went halves in a property, investment property over there. Have they got some shares on the U S stock market, whatever. And so the financial position is complex, but also family dynamics. You mentioned before blended families and that's just one. Um, type of dynamic family dynamics are getting really complicated as is parenthood. You know, you can be a parent now, you can be a sole mother and be a parent through IVF, you can, you can, you can adopt, you can foster, uh, you can have blended families, you can have step kids, adopted kids. So there is this such a. complex definition of family and such a complex manner in how we hold our finances, it's never too early to start. And you'll find if you do start very basic, you'll gradually get a little bit more complex. And then if you live long enough, you'll go back to basic again.

Catherine Ashton: 24:44

There's two ways that I can go with this. So probably the first one is the complexities you were talking about, about mothers that are single mothers now that can have IVF and have children themselves without being partnered. What about queer people? Is there any.

Greg Russo: 25:07

Specific things that they need to be taking into consideration. So, uh, yes and no, there's a lawyer's answer. So it's a good idea to, so the law does recognize same sex relationships. It recognizes marriages, it recognizes non marriages. It recognizes interdependency relationships, recognizes the whole gamut. What I'd suggest is, and this wouldn't be, be. Exclusive for queer people, but for anybody that is in a relationship, they might be a, a queer or a, a, a straight or a gay or whatever couple living together, not living together with a house, each dividing their time between them, whatever their situation is, go and get some advice about your situation and, and, and then draft succession documents accordingly. Um, there are fallback positions, you know, in a. relationship. Spouses have certain rights and certainly same sex relationships are recognized. But there are some marriages out there where people have separated that wouldn't be recognized as a marriage for superannuation purposes, for instance. And there are other situations where two people that aren't in a sexual relationship but are living together would be recognized as a relationship for superannuation purposes. So it really is case by case. It's partly gender based. It's partly sexuality based. It's partly, you know, uh, reputational based the commitment that you've got, and you could have two friends who, you know, absolutely adore each other in a life partners, but have no physical relationship because of a particular reason could still be regarded as a, as a couple for succession law. So really, really bespoke. And the best thing to do is, you know, If you, well, I think all of us to, to, to make sure you, when you go and see a, a lawyer, you, you give them warts and all of the situation. This is what we do, this is what we don't do. This is how we live our life. Because things get really complex. I, I, I, I think it's based on a real life situation. I heard a story about a household where there were. I think there were two or three couples and they had this really complex roster of who was sleeping with who, when, and the situation, and the question was, who's in a relationship and who's not? And it really, it took three lawyers to sort of sit down and unwind that and go, okay, well, we've got to make some judgment calls about, about this and to see whether, and they adopted a collaborative approach in the end about what would happen if one of them passed away and so on and so forth. But, and it's not a value judgment about any of that. It's like whatever, whatever dynamic people are in. The law can accommodate provided you're up front about it and you set out what the parameters are and you then prepare documents and make decisions accordingly. I mean, they're, they're in the vast minority, but they do exist. And I think as time goes on more blended families, more or probably less traditional marriages, aren't there? There's less traditional moms and dads and kids out there. Just a lot of marriages don't seem to last the distance. And there are a lot of blended families. A lot.

Catherine Ashton: 27:57

Yeah, the once, you know, nuclear family with the 2. 5 children, uh, is not the, the norm anymore. Now, the other way in which I was going to take this was online wills, are they safe to use?

Greg Russo: 28:17

Well, they can be. I, I never recommend them though, because again, it's like a one size fits all. And even though you might end up back at a one size fits all, I've, I've got documents that, you know, uh, within a Within a range of variation are sort of template documents that I use three or four different types and quite often where I start with a client and where I end up is not too far from where I start. So there's a long journey to get back to where we started or near to it, but there still is a process. And what the online process does is it ignores that process. It gives you a document that's the final document and you fill in the blanks. And that's it. One size fits all. It doesn't take into account things like blended families. There'll be a definition of, I give to my children. And you've got to think about, well, I want my children and my stepchildren. But then what does that word mean? What does stepchildren mean in your context? If you've got a partner who's got children and stepchildren, Uh, the steps of the step step children. So, and I'm not trying to be silly about that, but you do need to think very clearly about your situation. Yeah. And so quite often the powers of attorney and the wills and the, the, those sort of documents that get drafted as a result of an online process are not drafted all that well. And I would say a fairly large. Proportion of the, the estate claims that I've been involved in in the last 15 years have involved homemade or an online will, and the, one of the arguments has been about what does the will mean. Um, what did, what did the testator intend, what did the willmaker intend when they said I give to all my children? Because in this paragraph, they've referred to children including stepchildren, but in this paragraph, they've referred to children, just generally, does it include the stepchildren as well or, or, or not? And you know, we're talking about big, big money sometimes, so it's, yeah, if, if you, if you're smart enough. to be able to take an online will and look at all the things that should be in it and fix them all before you sign it. You probably don't need the online will. So I think it's pretty dangerous to use an online will.

Catherine Ashton: 33:06

Okay. That's good advice. And I'm assuming that would also go for your, uh, You know, ones that you can pick up at a post office or along that line as well.

Greg Russo: 33:17

Yeah, yeah. I mean, look, they, they fill a need, but really it's not that expensive to sit down with a solicitor for an hour or two and to get a bespoke document. If you're averse to that, then yeah, just do the best you can, but just be aware that it's an important document and it'll be read by someone other than you and interpreted by someone other than you after you're gone. So you won't be there to clarify what it means.

Catherine Ashton: 33:39

And what sort of price are we talking about for a will, would you say?

Greg Russo: 33:45

Yeah, so it varies. I mean, I think that you, you generally, if you're off to do a will, you're usually doing wills and powers of attorney and having a look at your superannuation, and you can spend anywhere from, you know, a few hundred. To less than a thousand dollars to get something fairly simple done. And you can spend anywhere north of three or $4,000 if you're wanting testamentary trusts and, you know, due diligences and all those sort of things done. I think generally the, I tend to have a, a, a, a wide range of clients and we probably range from somewhere a bit less than a, than a, than a than a thousand dollars for a single to maybe 1500 for a couple, somewhere in that range. At a, at a fairly. You know, comprehensive, but not too complicated level to about, yeah, five or 6, 000 where there are trusts and businesses and things like that. And then what happens is the, the, the, the wills, the processes that are in place quite a lot more and more Catherine, we're having family meetings at the end of the process. So after the documents have been discussed. Formulated, executed, we then sit down with the kids, whether it's a blended family or not, and go through, okay, this is what's going to happen when, if and when mom and dad die, this is where things are, these are the testamentary trust, this is how it works, this is the decisions that have been made, yadda, yadda, yadda, and then has anyone got queries, and sometimes there are legitimate queries, like, well, so yes, so how would we value things, or what about this, what about that, but what I find it does more than anything else is it takes something that was Something we never spoke about, and it turns it into something that we're okay talking about for half an hour every two or three years. And it's a bit of a signpost from one to the other, and it means that, and the feedback I get is those meetings are really, really important. And mainly from the will make as the will make is usually shake my hand very firmly. And so that, that was a really, really good. I'm very comfortable now that, you know, we had some decision points. We weren't sure about the business. We weren't sure about this. And we know that Michael has a bee in his bonnet because I gave Gavin some money when I, and to just sort of clear the air and to communicate mom and dad love you both. And they're trying to be fair, but being fair when there are lumpy assets, properties and business, it's really hard, but we're doing the best we can. And it really reinforces that. That idea that there's no rulebook with parentage, you know, parenthood, and there's no rulebook with rulemaking and, and sometimes, and, you know, unless you liquidate everything and divide it all, you know, like a cake, there are going to be differences. And provided the purpose and the reason for those differences has been ventilated, not in hospital, And not at the funeral and not after death, provided they've been ventilated in a, a collaborative, conducive environment, most people have nothing else to be upset about and yeah, I think that moving forward, I'm going to hopefully have a lot less litigation than I have in the past because of these sort of processes.

Catherine Ashton: 36:37

Let's hope, let's hope you can be put out of work,

Greg Russo: 36:40

Greg. That'd be, that's my objective, yes.

Catherine Ashton: 36:44

When you, when you retire though, how's that?

Greg Russo: 36:46

I'm still happy to draft the wills, but yeah, it could, we could, we could close the litigation part of the practice, yeah.

Catherine Ashton: 36:52

Yeah, that'd be nice, wouldn't it? And it's interesting for me, my father was a clerk of courts in the coroner's court, so I always grew up with. You're 18, you have to have a will and so I found it really quite strange when I met my husband and he had no idea and you're right,

Greg Russo: 37:13

you know,

Catherine Ashton: 37:14

yeah, and, and you're right, you know, having those conversations, you know, once, You know, a year and then, you know, it goes three, four years and then you maybe something happens and you have a conversation again, but it's amazing to know that you've got it covered and it's not really an issue any longer.

Greg Russo: 37:37

Yeah, it demystifies it a little bit. It, you know, I find it empowering ultimately to. to have these discussions about mortality, to recognize that it exists and it's part of life, you know, death is part of life and let's plan for it. Let's not welcome it with open arms, but let's plan for it. And people are generally a lot happier knowing that they've provided for their loved ones and knowing that they have taken some steps to promote, not ensure, but to promote a dignified passing for themselves. And that if they lose capacity, they'll be looked after you. And their finances will be also looked after. And most people find that an incredibly empowering position to be in as, as physically and mentally they're failing. If these, if someone like me and someone like you through your guide can come along and say, well, everything's okay. And this is what will need to be done now. It's yeah, very important, very empowering. And it's not that hard to do if you just set aside a bit of time. Uh, every couple of years to put it in place initially and then to tweak it and update it.

Catherine Ashton: 38:42

Very true. Now, what happens, I know you've mentioned briefly before, uh, I just want to make sure it's cut off. What does happen if you die with cancer?

Greg Russo: 38:55

Well, what doesn't happen is that the government gets everything. So, my area is an area where there's lots of urban myths, you know, and so the government doesn't suddenly, you know, rub its hands together and say, great, we've got everything. What happens is that your nearest next of kin. becomes the person responsible to administer your estate. And that usually coincides with the person who has the greatest interest in your estate financially. The theory being that people look after their own money better than anybody else. And so, if you've got a partner, it's usually the partner that will be entitled to be the Equivalent of the executor to administer a state if you've got no partner, but you've got children, it'll be the oldest child and then down the line. And if you've got no partner and children, it'll be your parents. So that's the, that's the who does the administration. And as to what happens to the estate, there's a formula and it depends on when you're dying. It changes from time to time, but currently, and it changed from state to state currently in Victoria, where I mainly practice, if you have a partner and you die without a will, the partner gets the first. X dollars. It's called the partner's amount. It's about half a million dollars and it's indexed in today's money. And then after that, if you've only got children with the partner, then the partner gets half of what's left and the children get half of what's left. So the partner doesn't get everything. I know, sorry, if you've got a partner in Victoria at the moment, if you've got a partner and only children with the partner, the partner gets everything. If you've got a partner and you've got children, maybe with the partner, but also children independent of the, of the partner, then the partner gets her, his or her amount and a half and all the children share the other half. Um, of, of what's left and then it gets more complex from there, there's provision in the legislation for multiple partners because you might have a husband and you might have a, um, girlfriend or a boyfriend, you know, they might have multiple partners that you might have not divorced the one partner before you've hooked up with another. So, it's very messy, but there is a process, it's pretty fair, you know, if you die and you got no partner, no kids, straight to your parents equally. If they've separated, 50 50, right? If your parents have passed away, it goes to your siblings. And if any of your siblings have passed away, it usually goes down the bloodline. The intestacy formula Apart from your partner, only follows the blood though. So it doesn't recognize steps. So that's, that's a big change. So blended families are in trouble when it comes to intestacy.

Catherine Ashton: 41:17

Oh, that's really good to know. It doesn't, it

Greg Russo: 41:19

doesn't go to the government. Okay. So that's one takeaway point from this session that your, your viewers can, can take is it does not go, goes to the government. If you're, if, if your family tree is so sparse that you've got no one that they can identify to about, I think it's three or four degrees, you know, if you start a person, you go up you know, like to a grandparent and back down. If, if after about five or six, I think it is connections. If there's nobody, then it goes to the government, like unclaimed monies.

Catherine Ashton: 41:47

Oh, that's very good. Now, with children. If there's no one around to care for them when you do die or become incapacitated, what happens in that scenario?

Greg Russo: 42:00

So there are courts in each jurisdiction and tribunals. So depending upon what would normally happen is a well meaning relative would normally make an application to be appointed as the guardian of the child to look after them until they're 18. And in that regard, the court or tribunal would be guided by any appointment. appointment you'd made in your will, because you can't actually appoint a guardian in your will. What you can do is you can say, I would like, I could say I'd like Catherine to look after my son if both my wife and I pass away. And that is an expression of a desire from me that I reckon she'd be a fantastic guardian. But if between me making the appointment, you become an unsuitable person, you know, you become depressed, you become unwell, anything like that, or you pass away, the court can always step in and appoint someone it believes is more appropriate. But you've got some say into what happens, but not a lot.

Catherine Ashton: 42:52

Okay, that's very great, that's fantastic. Now, probate. The word that you hear, but you really don't know about. What is it?

Greg Russo: 43:04

I think the best way of thinking about probate is so we, we, we can all drive a car. Well, most of us can drive a car. We have the skill set, but you need a license to be able to drive a car legally. And so if I'm an executor appointed by will, I can go and do stuff, but in order for what I do to be legally recognized, you have to obtain probate. Otherwise, The, the, the, the law, the Supreme Court won't recognize you as the executor. And that's fine. Quite often you don't need to get probate. You only need to get probate if for some reason you need to be recognized. So anytime where someone dies in this real estate, you need probate because the land title's office in the state won't process a transfer from a deceased person to a beneficiary. without probate and really to look at it pragmatically, probate is basically the, the, a registrar in the Supreme Court looking for any reason to find a problem with the will and the deceased is the, is the name on the death certificate different to the will, are there issues with capacity? Is the will, is the signature shaky? Do we have any, if there's any problems whatsoever and if they can't find a problem with the will, they will grant probate. And so it's almost like an insurance policy then that once probates being granted, it's the Supreme Court in the state saying, you know what, everything's fine with this estate. So if you were my executor, Catherine, and I passed away and you had probate, the Supreme Court's telling the world, we authorize Catherine to administer Greg's estate. We've checked it. It's all okay. And then land titles office are happy, uh, banks are happy. You know, share registries are happy. Sometimes you can get money out of a bank without probate. If you sign an indemnity, you know, it costs X dollars to get probate. And we want the bank to dispense with, with, with us having to do that. And, you know, probate can be expensive. It's, it's somewhere from, You know, a couple of thousand dollars to some tens of thousands of dollars depending upon what's in the estate and there's a fee you have to pay to the Supreme Court like a filing fee and they're, they're set to increase in Victoria in December and other states may follow suit. So it can be expensive to get probate and it can be expensive to go through that process. Okay.

Catherine Ashton: 45:16

And in my scenario, or the scenario we found ourselves in last year, was that, uh, Roland's family had come over from the States, uh, he had very little money in his bank account. He had no real estate. And when we rang the probate office, they said it would be, whether we needed to go through the grant of probate. They said it would be deemed with a. The bank would require it or his superannuation fund would require it. So we've had to bring those particular organisations and see what their requirements were. And fortunately, the kids could get access to the money that they needed to before having to

Greg Russo: 46:00

Yeah, and that's, that's a really good example. Sometimes banks will say, we don't, we don't need you to get probate. There are other reasons why you might want to get probate. You, if you have to deal with the tax office, you generally have to get probate because they won't recognize anyone that's not, not, not formally probated as the executor. There are some claims that can be made in different jurisdictions. Challenges can be brought against an estate. Sometimes those claims are tied in with a period of time that they're elapses after probate. So if you get probate on the 1st of July and it's six months, then after six months from the 1st of July, no one can bring a claim. So getting probate sometimes starts a clock ticking that you might want the clock to tick and it to come to an end. If you don't get Probate is always the risk that a claim could be brought in the future. So there are some tactical reasons why you might and might not get probate. The only reason you might not get it is because of the cost. And, but there are reasons why you might get it because you have to dissatisfy banks and land titles office or the end users, or for another sort of tactical reason that the solicitor comes up with.

Catherine Ashton: 47:03

Okay. That's great. Thanks for that, Greg. Now. I think we have mentioned scenarios where it's best to use a lawyer. Let's cover off on how's the best way to find one.

Greg Russo: 47:17

Yep. So the area that I do is one of those sort of bread and butter, or has been one of those bread and butter areas probably until recently. So until recently, most lawyers could do a will, could transfer a property, could do a simple lease. Leasing's got really complex in each state as has conveyancing and it's all online and you've got to be registered now. My area is lagging a bit. So if you've got a simple will to do, if you've got a simple estate to administer, you'll find most lawyers will say that they're able to do it. And if it's a simple estate, most lawyers will be able to do it. If there's any degree of complexity, if there's a self managed super fund, if there's a trust, if there's a homemade will or an online will, if there is anything apart from like a house and a bit of money in the bank, my recommendation would be to get in touch with one of the legal. Um, bodies, uh, the legal institute bodies in the states, so the Queensland Law Society, the Law Institute of Victoria, the New South Wales Law Society, and just ask for a list of their accredited specialists, because most states in Australia have the ability for solicitors to choose to specialize in an area and to be recognized amongst their peers as a specialist. So I'm a specialist in Victoria and Wills and Estates, and there are other states have have that specialization. And if you've got anything that's out of the ordinary. My recommendation would be use a specialist because it's more cost effective. It's more time effective and we get to the issues straight away and we tend to have having seen it a lot of it before we can give you a sort of reassurance about how things are going to go and we can warn you about where the problems are going to be. So you get onto the referral list from one of the. Industry associations and ask for a specialist would be my recommendation.

Catherine Ashton: 48:59

And what about Doyle's list? What's Doyle's list?

Greg Russo: 49:04

Uh, Doyle's list is controversial. Uh, Doyle's list is, is a list that it's, it's actually very useful. So there are, there are some people that question its utility. So it's a list. of peer recognized specialists in, in, in particular fields. And I'm told, I've never been, I've never been the recipient of a survey request, but I've been, I'm told that, uh, practitioners are randomly, uh, requested to nominate who they believe Um, is a particular leading light in a particular area, criminal law, family law, succession, you know, administration of estates, will making, administrative law, whatever. And so it's a law, it's, it's a, it's a database that is apparently compiled through that, that, that process of asking peers to nominate for no reward. who they think are leading lights in particular areas. And if you jump onto Doyle's list, you'll be able to see in each state who the recommended solicitors and barristers in particular areas including will making or estate planning and will disputes or estate disputes are. And yeah, I, I have a look at Doyle's. I'm involved on, you know, Doyle's and it's, it's, it's great to be recognized like that. I just, there are, you know, It's just another one of those things, um, that there are, I guess, the more sources of information you get, it's a bit like, you know, if you only decided to use products or services based on Google reviews, you might be misinforming yourself. And I think if you only relied on Doyle's list, you might be misinforming yourself, but I think it's a really useful tool and a certainly a good place as part of that process. But my advice also, Catherine, would be to not overthink it too much, unless it's a super complex situation. If you're an executor and you've already got a solicitor, maybe ask that solicitor, can they assist you? And if they can't, can they recommend someone who can? If you're an executor and you don't have a solicitor, then I'd be saying, yeah, go to Doyle's, go to the Law Institute. And if you can get someone who's on both a referral list from one of the Law Institutes and on Doyle's, that's got to be a pretty high recommendation.

Catherine Ashton: 51:11

That's fantastic. Thanks for that. Because a previous guest on the show had talked about, uh, Doyle's list, so I just wanted to get your opinion on that. That's

Greg Russo: 51:20

great, thank you.

Catherine Ashton: 51:21

With being the role of the executor, what are the responsibilities?

Greg Russo: 51:26

Yes, so the executor has two main responsibilities. The first relates to the body. They've got to arrange for the proper, uh, Disposal of the body or the remains, so don't have to have a funeral, but it's the executor's right and obligation to organize the funeral. People that come, clients that come to see me are often very clear about what they want and what they don't want to occur in their funeral, and those requests, those desires are unenforceable. It's really up to the executor, the executor. So if you're choosing an executor, uh, make sure the executor knows what you want, what your expectations are and ask them to fulfill those. It's their call. So they have to do that. They've got to take responsibility for the remains and for disposing of the remains, whether they're cremated remains or, or whatever. The second step. Our second set of responsibilities the executor has in a financial. So it's about ending your social time on earth, I guess. It's, you know, memorializing all of your social media accounts, identifying all of your assets, securing them. If you've got a house, Check with the insurance company it's still insured. If you've got a car, make sure that it's insured. Securing it, make sure things are locked up. Make sure the house is secured. Make sure the car's locked up. Things like that. And it's then once identifying the assets, identifying and paying the debts, and then using the will as a bit of a road map to turn out, to determine who gets what, and dividing the estate. between the beneficiaries nominated in the will. Finalizing things like, you know, Centrelink notifications, uh, Medibank, uh, Medicare notifications, all that sort of stuff. Notifying people that need to be notified, tax obligations, making sure that all the deceased tax affairs are up to date. If the estate earns some income, making sure the estate pays tax and that, you know, basically it's putting everything in a bag, putting a, uh, you know, a knot in the and then Uh, making sure that it's disposed of and that your, your business on earth, financial, all of your chattels, all of your assets are distributed to your beneficiaries and there's nothing left of you. That's an executor's

Catherine Ashton: 53:35

job. So just a, a few things you can do on a Sunday afternoon.

Greg Russo: 53:39

Very onerous job. Uh, I'm an executor for a, a very few number of clients who insist and ask and, and don't have anyone else. It is a very onerous job. It's a, it's a privilege, of course, to be an executor and in the distant future, I'll be my mom's executor with my siblings, but it is, it's Big responsibility. And if you make a mistake, you're personally liable. If you make a mistake and there's money in the estate, you might be able to get reimbursed from the estate. But if you make an estate and there's not, say if you distribute everything and you miss a beneficiary, you've got to pay them out of your own pocket. So it's a big responsibility.

Catherine Ashton: 54:16

Yeah, I think that's something that a lot of people aren't aware of, just how big a job it is. What sort of Who do you think makes a good executor that you've seen in your experience? Yeah, that's another really

Greg Russo: 54:28

good question. I think the, and this is going to sound self serving, but the ability to know what you don't know. So a good executor will get tax advice from an accountant. A good executor who has to administer an estate for, you know, Two years while the state claims being dealt with will get financial advice about how to invest the funds in the meantime and the assets in the meantime. A good executive will get proper legal advice. So it's the ability to recognize what they do and don't know and to source appropriate advice. And then the other thing is the ability to make decisions and judgment calls, you know, and you make those based on advice. But, you know, if a property has to be sold and it's being auctioned, and the reserve's a million dollars and it gets to 9. 75. What do you do? Do you, do you sell? Do you go back to the beneficiaries and get their consent? Or do you have it pass in and then go to private sale? And so you've got to make judgment calls and not second guess yourself. You've got to make a decision to be able to move on. So yeah, someone, if you were choosing an executor, it'd be usually someone who has a degree of familiarity With business matters and a degree of business acumen and someone who is going to use their head or is able to use their head independent of their heart from time to time, because it's about bringing objectivity into an environment, which is generally pretty emotionally, you know, is an emotional environment. So someone who can be objective and pragmatic, make decisions and delegate would be the perfect executor.

Catherine Ashton: 55:59

And would you say those qualities are something that should also be represented in a power of attorney? Uh, yep, absolutely. A power of attorney is a slightly different

Greg Russo: 56:10

role. So an executor's role starts, escalates, and then finishes. It might be 3 months, 6 months, 12 months, but it's a, it's a role. Once a body is dealt with, a state is dealt with, it's identified, it's, it's, it's a defined thing. An attorney, so that's like an executive is like a, a 400 meter runner or an 800 meter runner, whereas potentially an attorney has to be a marathon runner because they might have to just keep administering your estate for years. You might lose capacity at age 75 and linger till 95 and they have to administer your estate on an ongoing basis. So the, an attorney's role. Is more so I think more important quality is to be able to be a bit schizophrenic to be able to separate your finances and your interests from those of the person you're looking after and to have those two running in place for an indefinite period of time, which is quite different to an executor's role. The other qualities are all the same, though, getting advice, being objective and making decisions. But you also then need the ability to be able to juggle two sets of accounts and make decisions For someone on an ongoing basis.

Catherine Ashton: 57:21

And in your experience, is it better or worse to have the power of attorney and the executive at your time personally? Makes sense to me, I'd recommend to my clients

Greg Russo: 57:33

if there is, if there can be. So, there, there are kind of three different things you have to think about while someone's alive. There's medical decisions. And that's, I reckon, the most important, because the, you know, the dignity in dying, the, the, the having the, your last wishes about your, your, your physical life on earth being respected, incredibly important, and sometimes the hardest role to fulfill, because it does require a certain personality. My mum asked me to do that for her and dad, what my parents did when he was alive. And I politely refused and said, I wouldn't be able to turn the machine off on your mom. I wouldn't be able to do it. My sister is a nurse and she's very pragmatic. She said, I'll do it. I know what my mom wants and I'd hate it, but I'll do it. She was the right choice and I would have been the wrong choice when it comes to personal matters, you know, what guardianship type matters again, there's usually someone that has a degree of empathy when it comes to financial matters. Cause they're the only, the only thing that's left after you die is financial matters, right? So when it comes to appointing a financial attorney. It makes sense to me that there'd be either the same person as a financial attorney as the executor or the same group as the executor and the financial attorney or that there's a common thread so that if you and I were Bob's financial attorneys and then when Bob dies, you and someone else would be the executors. So there's that common thread and that you already know you don't have to reinvent. You have to go. So what's why we got all these Telstra shares? Why do we buy those? You know what's going on and you transition from you take one hat off. You put the other hat on, but you're in the same vehicle. Okay, so you're just a different role. That, that makes sense to me, and it makes sense to me that the person you would trust to tidy up your affairs after you die has got to have a lot of the same qualities as the person you would trust to do that if you lost capacity while you're alive. So yeah, should be the same person if possible.

Catherine Ashton: 59:21

That's great. Thanks, Gregor. I appreciate that. Now, how can I contest a will in Australia? Oh, yes. Well,

Greg Russo: 59:30

so there's, there are two main ways that a will can be contested or two reasons you might contest a will or you, someone might not have done a will and what happens under intestacy you might not be happy about. If we're talking about a will to start with, you might want to argue that the will is invalid. Okay, so, it might be that the wills, mum's will always divided everything three ways between her kids and for the last year, Frank's been living with her and you know, and he's got in her ear and suddenly mum dies and there's a will that gives everything to Frank. What's that all about? Okay, so the first thing you can do is you can look at whether or not you can argue the will is not a valid document. And without going into too much detail, there are, there are limited bases to do that. You can say in that case that mom didn't have capacity to do a will. She didn't have testamentary capacity, the capacity to do a will. It's very specific. You can argue that she was placed under undue influence, which is a very high bar, but it, you know, effectively, it wasn't her, her own volition, her will to do that will. It was someone else forcing her to do it, or you can argue that she hadn't read it. She didn't know it was in it, that she never would have signed that. She, she, someone just put a bit of paper in front of her and she signed it, not even knowing it was a will. Pretty limited basis. And if a will is formally executed, you know how before I said the law operates on presumptions, there's a presumption that if a will is formally executed, that it's valid. And there are different rules for formal execution of wills in each state, but generally, in writing, signed somewhere on the will, but we always sign at the foot of each page, and witnessed by at least two people, okay? And the two people have to be there when the willmaker signs, and the willmaker's got to be there when they each sign, okay? And so if that happens, If there's a will, if there's a document that says will, and it looks like a will, and it's been signed by the testator and two witnesses, it's generally deemed to be a formal will, and there is a presumption that the testator had, the willmaker had capacity, and there's a presumption that they knew of and approved the contents. So. It, it, it's a much higher bar that you've got to jump over to start arguing that the person or that the person didn't know what they were doing or that, that the will's not valid. Anyway, the first grounds that you'd, that you would challenge a will, Catherine, is that you'd say it's an invalid document. The second basis is you might look at it and say, well, we can't challenge that it's, that it's, it's a valid document. We accept it's valid, but you know what? Mum got it wrong. She just, you know how she decided late in life to give everything to Frank? She shouldn't have done that. She got it wrong. And so what you can do is, again, on a really limited basis, and it really varies from state to state, a limited class of people can say, I accept the will's a valid document, but I'm unhappy with its contents. And that's called a family provision claim. Basically, we say that the will doesn't adequately provide for And in Victoria, that the, the sort of the basic test, and this is pretty similar in other states, is that you've got to establish that the deceased person had an obligation, we call it a moral obligation, but that word moral, who knows what it means, a moral obligation to provide for me, and that the will doesn't satisfy that obligation. Okay. So if I'm, I've got no assets, you know, I'm, I'm, I'm, I'm, I'm suffering from mental illness. I'm living on the street. Uh, mom's got, uh, uh, 2 million. I've got a sibling who's comfortable and mom gives everything to the sibling. The sort of the, it's not about fairness. It's not about 50 50 or anything like that. It's basically the court saying to mom, you brought Greg into the world and you got an obligation to make everything right. basic provision for him. He needs it and your will doesn't do that. And so then what a court will do is it'll vary the will just enough so that my needs are met. That's all it does. And so they're called family provision claims. They've been around for years. The law changes all the time. The time limits are different in every state. The people who can claim are different in every state and the case law, what you might expect, is different in every state. And so if you're looking at contesting a will, the best advice I can give you is whatever state you're in, ring a solicitor straight away, as early as possible, and ask questions. Because sometimes if there's assets in different jurisdictions, there's different claims made in different jurisdictions. And if the person lived in one jurisdiction, there's a claim made in that as well. So it can get quite complex. But they're the two bases. You challenge.

Catherine Ashton: 1:04:01

And just on that point, Greg, that's something that I hadn't actually noted down here was as you were saying, if you make a will in one state, and then you have assets in other states, how does that

Greg Russo: 1:04:15

work? That's another good question. So, and to just broaden that question a bit. People nowadays have assets in lots of different jurisdictions. I think I mentioned before, you know, Oh, I've got, I've got an uncle and he's recommended. So I gave him a hundred grand and I've got assets. I've got a, I've got shares in the American stock. Or I worked for a couple of years in the States and I've got, you know, what they call their superannuation over there, or I've, you know, my, I inherited a property in the UK. So people have not only assets in different States of Australia, they have assets in different countries. Um, and so, So the bottom line is that you've got to do documents that are going to be valid and recognized in the jurisdiction that you die in. So you're domicile at the date of death. So wherever you're living at the date of death, that's a really important, um, um, factor for working out what happens with your assets. Okay. But the other thing is that the, if you've got. immovable property. If you've got real estate, basically, if you've got real estate in a particular state of Australia or overseas, then it's the law of the land that the real estate is in that applies. So to answer your question with a really silly example, if I've got assets in Australia and I've got assets in, in say France, and I do a will that simply says I give all my assets to Catherine in Australia, that'll be effective because I know. how to do a will in Australia, but in France, it might not be effective because there might be rules about who gets the assets. When I die, half of them might go to my parents, half of them might not go to use. There might be what we call forced airship rules. Okay. There might be other formalities with the will here. We need a signature and two witnesses over there. They might need three. I don't know. So, Um, the, the, the longer answer to your question is if the, if you ever have assets in multiple jurisdictions, find someone like me that can talk about each jurisdiction in Australia, but someone like me will then say to you, we need to have a conference or you need to have a meeting with a solicitor. I've got one at the moment where there are assets in Thailand, and we're going to have a meeting with the Thai solicitor. And I'm going to say, right, what do we need to do to, to, to make sure that this happens across the board? In relation to, um, death or, or, um, disability. And what I generally recommend is that you, you do a will that basically says at the start of the will to the world, this will will only deal with and distribute assets in, and then you list out where it is in Australia. And then in the case of this Thai couple that I've got, I'm recommending that they do a will in Australia, and I'm recommending they do a will in Thailand, and that the two of them are separate. They're independent of each other. So yeah, multiple wills, multiple powers of attorney. It's again, it's just about being pragmatic and thinking if I die or lose capacity in a particular geographical location, what are the laws of that area and how are they going to impact on what happens to me, to my body, to the choices that are made.

Catherine Ashton: 1:07:18

And just clarifying. So I made my will in Victoria. So if I died in another city, Yeah. Is my Victorian will still valid? Yeah.

Greg Russo: 1:07:31

Most in, in Australia, most of the wills acts are similar enough that if you do a will in one state, it'll be regarded as, as, as it'll, it'll apply to all of your assets. If you don't stipulate, if you simply say, I give everything I own at the date of my death to Catherine, then wherever you own assets, you might have to get probated two or three different places, but each of the different states will recognize that as a will. It doesn't matter where you signed it. What matters is whether the probate office. You can recognize it as a will at the date of your death. And in Australia, all the rules are similar enough that the probate officers would.

Catherine Ashton: 1:08:05

Okay. That's good to know. But what a trend. We must have seen what emerged over the last 15, 20 years is that's the change with people being more mobile.

Greg Russo: 1:08:17

Yep. A lot more things online. Definition of family changing, definition of property changing, Bitcoin, you know, all this stuff that, you know, the, the, I think. I, you know, I reckon in the last three years I've had one estate. which has been as simple as a house, money in the bank, and chattels. I've had one. Everything else has had a degree of complexity. And that's fine. It is what it is. But it is an area that it does argue towards, yeah, using people that specialize. Like if I, if I was needing a family lawyer, I'd go to a family law specialist. And if I need a, if I'm getting a lease done, I'll go to a commercial law specialist. So this is an area that is becoming sufficiently complex that I think generally warrants that you at least think about. The benefits of, of, of yeah, speaking to a financial advisor, speaking to an accountant and speaking to a specialist solicitor and particularly if you're an executive because executors, they're, they're, their reputation and financially they're, they're on the hook for anything they do wrong. So, uh, make sure that if you are an executive, you think about carefully whether you want to do the job and I've been an executive and I've taken it on board because it's a, you know, it's a responsibility and it's a privilege, but you do need to dot the I's, cross the T's and make sure you're covered.

Catherine Ashton: 1:09:34

Yeah, it certainly sounds like it. And is there any way to exclude someone from a will? Uh, yep,

Greg Russo: 1:09:41

there is. So, there's two ways to do it. One is to, well, three ways. One is to simply not include them in the will and do nothing more. A better way is to not include them in the will and to explain blandly in the will. That you've not included them and then external to the will, you can put more detail about why you've, you've, you've excluded them. So, if I wanted to cut out Simon from my estate, I could put in my will, I give everything, um, to my, you know, two children, Mary and Bob. A better way to go would be to say, I give everything to my two children, Mary and Bob, I, I declare that I've made no provision for Simon. And the reasons for me doing that are known to my executors, okay? And then external to the will, you would set out all the reasons. The reason for that is that, there are two reasons. One's a legal reason, one's a pragmatic reason. The legal reason is anything you put in your will can be scrutinized by a court and a judge after you're dead. And if you put in things that are inaccurate, it might impact, it's rare, but it might impact on other, other aspects of the will and ultimately the validity of the will. So, if you put something stupid in the will like, I've excluded Simon because he never visits me and you know, I haven't spoken to him for 20 years and Simon was regularly visiting the, the, the test data, that might be evidence of, of a, of a delusion. So, you wouldn't put that in the will. The other, and, and the will becomes a public document so that everyone can see it and it's got to be presented to the court. The other reason though, from a pragmatic basis, why, excuse me, why you might not include any detail in the will, is sometimes Simon might not care. You know, Simon, if Simon's excluded and the only evidence is that, you know, well, Simon's excluded for reasons that are known to my executor, Simon might just take it on the chin. But if you take a red rag and if you wave it in front of his face and go, well, Simon's a, you know, he's a terrible son and he never visits me and his wife's horrible and, you know, it's, it's all these reasons why Simon says, hang on, that's not true. I've now got to defend myself. And so Simon issues proceedings to clear his name. And he wouldn't have done it otherwise. So, yeah, so that's, that's one, that's the first two ways to do it is to bland with a declaration or simply exclude, but a better way, because it's generally only in a state that can be challenged. So we're talking about excluding a beneficiary on a basis that they won't be able to do anything about it. They won't be able to challenge, they won't be able to, as unhappy as they are, they won't be able to effectively, Change the distribution that, that, that, that your client or that, that your, that the person wants to, their, their estate to be distributed pursuant to. And so a better way of doing it is to, is to actually not have those assets fall into the estate. So if I've got a client with a million dollars in cash and two kids and one of them he wants to exclude, the other one he doesn't, and there's time. I'll be saying just distribute 950, 000 out while you're alive because then when you die, you die earning 50, 000 and if the son wants to argue for half of 50, 000, well, good luck to him. So, the forward estate planning comes into play. Now that's, that's a very bland statement. You've got to think about stamp duty, you've got to think about capital gains tax, you've got to think about longevity, you've got to think about a lot of things and get financial advice and tax advice. But, the best way to exclude a beneficiary from your estate. is to die without an estate. And that can sometimes be achieved depending on the circumstances of your passing.

Catherine Ashton: 1:13:00

Wow, that's a really interesting thought.

Greg Russo: 1:13:03

Some people, yeah, some people, uh, we help to, to, some people want to control from beyond the grave. A lot of people want to control from within. As they are entering the grave. And yeah, it's incredibly, it can be incredibly empowering, you know, with the appropriate checks and balances. I had one client who was absolutely adamant that his son was going to contest. He'd, from his perspective, he'd been a very good father. He tried and tried and tried, but I think it was alcohol, drugs, and other bad choices that had intervened and got in the way. And he didn't want his daughter to suffer as a result. of the son's claim, which was going to take six to 12 to 18 months to resolve and going to cost the estate hundreds of thousands of dollars. So we took him from having a net worth of about 3 million all the way down to about 700, 000 by, you know, getting a property and putting it in the joint names of him and his daughter and getting his super and making sure it went to his daughter and getting money in that was in cash and putting it in a trust, things like that. Um, he was very unwell. He was mentally fine, but he was, he was only going to be around for a few months. It was some end stage cancer that hadn't affected his, his capacity. So we got capacity assessments. We made sure he knew what he was doing, all that sort of stuff. And when he died, he had about 700, 000 left and the son challenged and the son ended up taking about 150, 000 as a settlement because There was so little money there relative to what they thought was going to be there. They found out towards the end of the negotiations that the father had divested himself of assets. And unfortunately, even though that firm there resolved to, you know, to be unhappy about it, they, they, they couldn't do anything about it. So he would be very happy if there is an afterlife, I'm sure. And if, if I end up where he is, he will, he will thank me and congratulate me because it was very important to him. Some, some people don't care, you know, I'm going, I don't care what them, them sorted out. To him, it was incredibly important that. His son, he was, he took it as a personal affront that his son would be able to do something after his death that my client was able to prevent before he died. So this was a way of him achieving some form of self determination so far as his assets were concerned. So yeah, we do a fair bit of that, Catherine.

Catherine Ashton: 1:15:13

And so, this question that's next that says inheritance planning, really it's dependent on each individual, each situation, isn't it?

Greg Russo: 1:15:22

That's right, yeah. So, some people want to, you know, minimise tax consequences for their beneficiaries, so we talk about testamentary trusts. Some people want to protect them from bad relationships, so we talk about protective trusts. Some people want to, are concerned about Centlink. You know, they've got a child with a disability and they want to maximize the prospects of the child maintaining a special disability pension. So there are all different ways that we can look at doing at addressing those needs. Some people worried about a claim being made. And yeah, it really is an opportunity to, to help. It's a bit of a, you know, not to get philosophical, but it is a bit of a journey of self discovery where people find out just how important this stuff is to them. To some people, it's amazingly important, and to other people, it's not, it turns out it's not that important at all. A lot of times, I send my letters of advice, and they come back and go, yeah, look, don't worry, it's fine. It's all good. I couldn't be bothered. It's, you know, whatever they do, let them, if they want to fight about it, let them. They'll fight about it. Okay. I'm not going to waste any energy on it. I'll keep spending my money, whatever I leave, that'll, that's when I'm handing over the baton for them. But whether they're at one end of the spectrum or the other on the care factor, they all want, and my job is to make sure they're in a position to make an informed decision about that and to take responsibility for how simple or complex their estate plan is and how much or how little they want to resolve. They want to control from beyond the grave and how much they want to, you know, actually. reduce their estate to take preemptive strikes against potential claims being made. People learn a lot about themselves when they consider their own mortality and what's going to happen and what the world's going to look like without them in it.

Catherine Ashton: 1:17:01

And tell me, when have you seen it go Quite bad, Greg, because things haven't been planned for.

Greg Russo: 1:17:08

So where we plan well, things can still go bad, but the risk is minimized. Where there's some inadequate planning, it's, it's usually, it's, it's usually people that are unwilling to be honest with themselves. So it's usually people that are living in denial, you know, and that I just, you know, they just refuse to accept that the wife and their kids, so stepmother and the kids. I'm going to get on. They just refused to accept that they've got rose colored glasses with that. So I had a, I had a client who's, who was in that situation. He had a, a wife and she had no children and he had three children of his own. And it was obvious that they didn't respect her and she. had given up on trying to secure their respect, but he couldn't see it and he refused to put any checks or balances in place. And they argued for years about her entitlement and, you know, what adequate need was and all that sort of stuff, because he just left everything to, to, to them to look after her. And she didn't want to be looked after. She wanted her own money. She wanted her own assets. She didn't want to be beholden to them. She didn't want them to be waiting for her to die. So they could get their inheritance. So yeah, when it goes wrong, it goes wrong in a big way. And sometimes the planning process can address that. I often will recommend, you know, and again, as you said, it's, it's very bespoke. So I'll often recommend if there's intractable disputes, if the only thing keeping this family together is the willmaker, and once the willmaker goes, people are just going to drift apart. I, I always recommend there be a separation. If they can afford it, if they've got a big enough estate, wife or husband should get that, kids should get that. If you want to keep in touch, that's fine, but you don't have to. Otherwise, if there's not enough money or if there's a desire to maintain assets, we can do things like life interest where the partner can reside in a property, but ultimately it will pass to the children. They can be, they've got to be really carefully thought of, and they've got to be really carefully drafted, and there's lots of tax and other consequences, but we can do those sort of things as well. Yes, I think that's probably a longish answer to your question. It can go wrong very seriously, but it's usually whether or not you use a solicitor will go wrong if you don't think practically, pragmatically and really Honestly, you got to hold up a mirror to what's going on. You got to say, you know what, this family is dysfunctional and we need to accommodate that dysfunction. I usually try to reassure my clients, Catherine, where they'll come in and they'll start whispering, they go, Oh, you know, because, you know, and they've got these secrets and I get fine. Tell me what's and all. And I've, and I usually don't get anybody above on my dysfunction scale. Cause I've seen some pretty bad things. Most of the people I say that think that they are the worst. Family in the world, they're so dysfunctional, they're embarrassed. Most people are about 1 or 2 out of 10 on my dysfunction level. Most people aren't as dysfunctional as I think they are. So, be honest with your lawyer would be my advice. Make sure the lawyer knows everything.

Catherine Ashton: 1:20:04

And I think having those early conversations around the dinner table or whatever space you're having them in, in a car where no one can leave, it would highlight whether you're going to have Conflicts of interest or points of view that then perhaps you could start planning accordingly to what you're seeing actually eventuate.

Greg Russo: 1:20:29

Yeah, absolutely. You might not realize that someone's had a bee in their bonnet for so long about something. Yeah, really? Oh, well, let's sort that out. Yeah, absolutely. And it's about. I think it's, it's where parents continue to be parents that even though we, you know, we're probably talking now about older families where everyone who's relevant is, is an adult, but the parents get to be parents again. So they sit down with their kids, they're in their thirties and forties that are twice as wealthy as them now and three times as smart and they go, right, so this is what we've decided to do. Mom and I've talked about it or dad and I've talked about it and this is what we've decided to do. And to just sort of set those out. Now. You know, Sarah is not doing as well as the two of you. So we've decided we're going to allow her to keep the house. And what we're doing over here is giving you the super. And we think that's fair because you know, we, this, that, and the other, and the boys can go, well, I don't think that's fair at all, dad. I mean, she's had the same as us and you can discuss it. It's, it's only money, right? It's not like the, we're still a family at the end of the day and we don't have to agree with everything, but it does allow these matters to be ventilated. And I can guarantee you that if the discussion's not had and mum and dad die. And Sarah gets the house, and the boys didn't know she was going to get it. That's when there's trouble. And it's not usually just the boys and their sister, it's the in laws. It's the in laws saying, but you deserve more. And that's where, uh, that's where, uh, a, a, an issue that could have been resolved around the kitchen table or the dining room table over a couple of, is then becomes intractable. And that's what, once you lawyer up, things that are, are problematic become, uh, resolved and become very, very firm and fixed. And people like me get involved and go through the process and say hello to the barristers and the judges again. It's not, it's not great, but yeah.

Catherine Ashton: 1:22:12

And that sounds expensive. It is

Greg Russo: 1:22:15

expensive. It's, it's very expensive depending on, on, you know, on which barrister you use and, and how it's run. Mostly, you know, to get to a mediation between an estate and a claimant, you'll have spent about 50, 000. And that's sort of a, Uh, sort of the first pit stop and then to get to a final hearing in most estate type claims you're spending something north of 100, 000. It's just a horrible amount of money so that if you've got an estate that's worth say a million dollars or two million dollars, you're spending a significant percentage of the gross value of that estate for the privilege of arguing. And usually quite often the, the costs you end up spending can be similar to or even more. Then the dispute that you end up, you know, how far apart you are. So, uh, yeah, the, any early intervention, a colleague of mine coined the phrase preventative lawyer, and he sees, he saw himself. And, and I think it's really, really good focus for, uh, for estate planners who work in this space to see ourselves as looking at all the possible things based on the family dynamic, based on an informal plus a robust conversation with our clients, think of all the things that might go wrong and then trying to accommodate them. and take steps to prevent them from happening. And that's all we can do. I mean, that's the definition of self determination. You know, we put these advanced care plans into place in the hope that medically we're going, our, our, our passing from being alive to not being around is going to be characterized by dignity, but it's not always the case, but we maximize the chance of that occurring if we've got a good set of documents. And if you've got a good set of estate planning documents, Someone wants to have a fight in your family. They're always going to have a fight, but you minimize the prospect of that occurring. If you've got a good set of estate planning documents, and if you have these conversations so that not only are the documents robust, but the expectations from the parents are very, very clear. And even if I don't agree with what dad said, if he told me. And he looked me in the eye and he said, this is what I want and this is my will, then it's much harder for me to then go to court and argue about that.

Catherine Ashton: 1:24:20

And what surprises me is that about 46 percent of Australians don't have a will, roughly what the figure is. And what surprises me is that these same people are going and getting their tax done, putting extra money into this super. Yet at the end of the day, they're not taking the basic steps. Why do you think that is?

Greg Russo: 1:24:48

Oh, well, I think I know from my experience that we, we, we spend a lot of our time unable to actively accept our own mortality. I mean, it's as simple as that. We live our life not prepared to realistically consider The fact that we won't be here one day, the benefit for me and working in this area, apart from the, um, professional, uh, rewards I get is that being reminded every single day. about mortality. I am drafting wills. I'm doing death bed wills. I'm administering someone's estate. I have someone come in on day one, you know, very well, but just having had a, having some tests and, you know, getting some bad news for a melanoma. And then six weeks later, the widow comes in and says he passed away, you know, and it was very, very sad at the end there, just constantly being reminded about mortality for me has become incredibly life affirming, because it's a reminder that. It's all going to end one day and who knows when and who knows how long we've got. And so I'm very conscious of the fact that the, the end can come pretty quickly and can come quite suddenly, or it can be the opposite and we can linger on and we can become unwell, but the onset of debilitating illness can also be very sudden and can, and can come on an unexpected basis. And so for me, it's just an absolute no brainer and it's not that hard to make provision for that, but. A lot of other, a lot of people that don't do the job that I've got, that don't have the luxury of being reminded every day about mortality, is just a refusal to accept that. It's, and it's, it's not a criticism, there's no value judgments in that observation, but you ask most people about, just to start talking about death, and they're just not comfortable. We're not comfortable having the conversation about ourselves, about not being here. So, and it, you know, of course we worry about our kids and we just can't face it, can we? And that's, that's, it's just, it's impossible to formulate a strategy and I can deal with. financial problems. I can deal. I'd hate it if my wife left me. I'd have a way of coping with that. But most people would say they've got no game plan for dealing with the process of dying. You know, I don't know what I'm going to do and what's going to happen after you're gone. I don't know. So it's just put in the too hard basket, Catherine. And I get that. I respect that. But my job is to try to encourage it out of the too hard basket for, you know, A couple of hours every few years, let's sit down, we're going to shut the door, let's talk about mortality, let's talk about what's going to happen if you lose each other, heaven forbid you lose your kids, what happens if one of your kids dies before you, what about this, what about that, what if they separate, let's talk about all the things that can go wrong, let's put in some checks and balances, and so when you walk out of here having the file done and closed, at least you know that you're safe. Well, the consequences, the financial consequences of my death and the process of my passing, I've exerted a degree of will over and, and, and, and there's a, there are certain as they can be, and I can put it in the too hard basket again now with a jumping out of, with a, with an alarm for two years time and we'll retweak it. So it's just about that. It's about taking it out of the too hard basket and then putting it back in for a year or two. That's, that's, that's what I see my job as sometimes.

Catherine Ashton: 1:28:05

I like that analogy quite a lot. Now, Greg, tell me about superannuation. Is that something covered in the will or is it separate? How does that work?

Greg Russo: 1:28:16

Okay, so yeah, superannuation, uh, are assets that are owned in a superannuation trust. So superannuation is a just a special type of a trust that attracts some pretty good government tax benefits. So anytime you got money in a trust like a family trust or a superannuation fund, not automatically covered by your estate. The way that I describe it is that when you die, the trust keeps going. Okay. You don't own the assets at the, um, date of your death, the trust owns them and the trust keeps going. Now with super, there are some pretty strict rules about getting the money out. out of the trust pretty quickly after death. But the family trust, there aren't. So, with a family trust, the family trust doesn't even know that you're dead. You die and the family trust just keeps going because you're just a passenger in the back seat of the car and the, and the trust keeps going. With super and with family trust, you have to, you have to, have to look at things specifically. A simple will is generally not going to be enough to, for you to be able to work out what happens with your super. After you die, what happens to the trust after you die? You usually have to look at the super deed and do what's called like a nomination. You can do a nomination, which can be binding, which will require the trustee to pay the super in a particular way. And there's only a limited number of recipients that you can nominate under the superannuation law. Um, or it can be non binding, which in my personal view is just a waste of time because a non binding nomination is just an expression of a wish and it doesn't have to be followed. So if you've got super. And you've sort of, just to wrap this up and give an example, if you've got, if you're someone who's got assets in your own name, you've got super, and you've got a family trust, and say you've got an asset overseas, you're probably going to need a will for your local assets, you're going to have to look at your trustee to the family trust to work out what happens to the trust after you go and put some checks and balances in place, you're going to have to do a nomination for your super, uh, Okay, to work out where that's going to go and you're going to have to do a will overseas to, to, to work out what happens overseas. So that's the sort of suite of documents that you would need and then if say in five years time your accountant says, Oh, let's get rid of the super fund. It's all too hard. Then that's when you'd come back to see a lawyer and say, we got rid of the super fund. So how does that impact on the documents that are left? And do we just leave those in place or do we do another, you know, so yeah, good question. Super always requires a sort of a second look.

Catherine Ashton: 1:30:32

I think everyone's now rushing to their super documents to see who their nominated beneficiaries are. Is there any other advice that you'd like to provide people or encouragement?

Greg Russo: 1:30:48

No, look, I think just generally my business model, and I think it's a business model a lot of my colleagues share, is never be worried, embarrassed, or concerned about ringing up and speaking to someone like me one on one. There's lots and lots of urban myths. Don't do the, the Dr. Google, the lawyer Google thing. There's so much misinformation out there on the internet. Use resources like the resource that you've created, which is well considered, which is, you know, a lot of work has gone into and which is, is, is, is, is a really valuable resource and gives accurate and timely information. Use resources like. that or, you know, get in touch, email, if I get emails, you know, you don't know me, but I just wanted to pick your brain on a couple of things. I hope you don't mind where we're more than happy to most of the people that are, that are professionals like me, whether it's lawyers or accountants are more than happy to spend time to create a bit of clarity and to demystify, particularly in an area like this, where there are lots of urban myths. You know, the government gets everything. If you die without a will or why do a will, they can just be contested. They're waste of time. You know, all of that sort of. Stuff that has a tiny degree of truth in it. But, you know, it's only the start of the whole sort of conversation, so I'd encourage you to get in touch with people like me or go to reputable sources, government publications, your publication, things like that, that are clearly reputable, you know, that have been researched and find out for yourself and then when you've got a list of questions, Maybe, uh, make a time to see someone like me and say, right, well, mom died and we weren't happy with that, how that went. So now we want to get our affairs in order and bang, bang, bang, bang, bang. The other thing I'd say is when it comes to all professionals, doctors, lawyers, it's a two way interview process that just because you make an appointment with someone, if The chemistry is not there if the communication isn't isn't then find someone else that you're entrusting and I don't take it for granted and the people that I work with regularly don't either that you're entrusting us with really important stuff and we don't take that for granted and you we need to be able to make sure you understand what we're telling you and we understand what you're telling us so it's a two way interview process find someone that you can trust and and try to keep that person for as long as you can. Uh, because it's a really important asset for you to have moving forward.

Catherine Ashton: 1:33:05

That's great advice. I really appreciate that, Greg, and thank you so much for your time today.

Greg Russo: 1:33:10

That's right. Again, thanks for the opportunity. It's been great talking to you.

Catherine Ashton: 1:33:14

Thanks, Greg. We hope you enjoyed today's episode of Don't Be Caught Dead, brought to you by Critical Info. If you liked the episode, learned something new, or were touched by a story you heard, we'd love for you to let us know. Send us an email, even tell your friends. Subscribe so you don't miss out on new episodes. If you can spare a few moments, please rate and review us as it helps other people to find the show. Are you dying to know more? Stay up to date with. Don't be caught Dead by signing up to our newsletter and follow us on social media Head to Don't Be Caught dead.com for more information and loads of resources. Sometimes it can get a little bit lonely and you can feel a little bit disconnected from the audience of who's listening to the podcast out there. So I would love if you could send us some fan mail. You can find the link just above the description in every episode. Click on that and you can send us a text message via your phone. I'd love to know what topics you like, what you don't like, and also what do you wanna hear. So shoot me a message. I look forward to hearing from you. Bye.