Giving away inheritance while you are still alive

Let Them Enjoy Their Inheritance While You Are Still Alive

Sometimes (but very rarely) it may be appropriate that you pass your assets (or some of them) to your children while you are still alive. The question really is that if you want to see your children enjoy their inheritance (or part of it) while you are still alive, should you make gifts to them, or should you leave the gifts to them in your will? 

What Are the Components?

  • The first thing to do before deciding to let your children have their inheritance early is to work out whether you will be leaving yourself with enough to live on and enjoy a decent lifestyle for the rest of your life. You might have to consult a financial planner to decide this.

  • If you decide on a gift of land then there will be stamp duty to be paid and, most likely, a capital gains tax liability will arise. If you decide to give shares to your children during your lifetime then there will be a relatively small amount of stamp duty but there will definitely be stamp duty payable, as well as capital gains tax (unless you are giving them shares on which you have made a loss). Regardless of whether you decide to transfer land, shares or cash to your children, there will be no gift tax or gift duties.

  • If you are receiving social security benefits then you must make sure that you are aware of the consequences of making such gifts on your eligibility for the benefits.

  • If you decide that you want your children to have their inheritance (or part of it) early by way of loans, then you should have a written loan agreement (which can be on very favourable terms), you should take security such as a mortgage over a property, and you should update your will to clarify whether the loan will be an asset of your estate or whether it is to be forgiven. This is particularly important if, like most people, you wish to ultimately treat your children equally. 

Why Would I Want To Let My Children Have Their Inheritance Early by Way of Loans?

  • If you make a gift to one of your children during your lifetime then it becomes one of the matrimonial assets that is available for division between your child and their spouse or partner if they go through a relationship breakdown.

  • If you make a gift to one of your children during your lifetime then it becomes one of the assets that will be available to their creditors if they are sued for the debts they owe such as if their business goes under (or if they are held personally liable as a director of a company that went into liquidation because the directors allowed it to trade at a time that they knew or should have known that the company could not pay its debts as and when they fell due).

  • If you make a properly documented loan to one of your children during your lifetime rather than a gift then if one of your children and their spouse or partner goes through a relationship breakdown you can recall the loan and the amount you lent them will not be available for division in a Family Court property settlement.

  • If you wish to let only some of your children have the benefit of some of your assets during your lifetime but you ultimately want to treat all your children equally, then by passing the benefit by way of a loan when combined with appropriate compensating gifts in the will can ultimately have the equalising effect you desire. 

Links:-

 http://www.austlii.edu.au/au/legis/nsw/consol_act/rpa1900178/s97.html