While many people are unlikely to nominate estate planning as being on their “favourite things to do” list, it really is a task that should be on all our “must do” lists.
If you die without a Will, you are said to have died intestate, and legislation will dictate who can administrator your estate and how it will be distributed. This may not accord with your wishes.
Estate planning is more than simply drawing up a Will
The preparation of a carefully thought out and well drafted Will is a central part of estate planning and part of the service our experienced lawyers are able to offer our clients.
Estate planning is much more than simply writing down a list of your assets and who they will go to after your death. Prior to preparing a Will we recommend that our clients consider some or all of the following questions depending on their personal circumstances:
- Who would you like to manage your affairs (your Attorney) and make decisions about your care in the event that you no longer have capacity to make important and everyday decisions?
- Are there any directions or limitations on your Attorney to make decisions?
- Do you want to give specific directions to your Attorney regarding your health and medical decisions?
- When will your attorney’s power start?
- Who would you like your belongings (often referred to as ‘assets’) to go to after you die, and are there any consequences of the decision?
- How are your assets held – personally, jointly with someone else, in a trust, company, superannuation, life insurance? How will your superannuation death benefit be distributed?
- Do you own a business and if so, how is it operated? What happens to the business if you no longer have capacity or die?
- Do you have young children? Consider who would be a suitable guardian to appoint if you were to die before the children were old enough to look after themselves? Do you need a separate trustee from any guardian to manage any assets left to the children until they become adults?
- Do you have children from a previous relationship? If you do, consider what provisions will be made for those children. Consider also provisions to be made for a de facto or same sex partner.
- Are there any individuals you may wish to exclude as beneficiaries and what are the reasons for excluding them? Consider whether excluding someone may lead to a dispute over the estate.
- You may have clear wishes for your funeral. Although you obviously cannot be certain they will be followed after your death there is a much better chance things will be done how you want if you leave clear guidance on this issue.
- You may wish to make your position on organ donation clear.
Choosing an Attorney or Executor for your estate is a central part of estate planning.
An Attorney’s role is a very important one as they will be managing your financial and personal/health affairs whilst you are alive. You must be satisfied that they will act in your best interests during that time.
An Executor’s responsibilities range from arranging your funeral through to collecting any debts owed to you in your lifetime, claiming under any available insurance policies, protecting your assets until distribution, obtaining probate and ensuring that assets are distributed according to the wishes outlined in your Will.
If the Will is disputed, then the Executor will be the person responsible for dealing with any dispute including giving instructions to legal representatives in the event of litigation being commenced.
Important matters to consider when choosing an Executor include:
- Who you would like to appoint to manage your estate?
- If you have someone in mind, consider whether they are willing to accept this role?
- Is the person you are thinking of suitable for the role and will they have the time needed to carry out the duties involved?
- Is the person you are thinking of likely to outlive you?
- Consider appointing a second alternate Executor as a backup in case your first choice is unable to act in the role. Alternatively, consider whether having joint Executors (two people) to fulfil the role may be a more suitable option.
- Will the person have the confidence and experience needed to do deal with your assets in the way you would like? This question is especially important if you foreshadow a potential dispute over your estate. The Executor needs to be able to act impartially.
- If you do not know anyone suitable consider whether you appoint someone like your solicitor, accountant or a trustee company to act in the role.
Proactively planning for how you would like your assets to be distributed after your death can save many hours of heartache for friends and family.
Estate planning can also aid in ensuring that the assets you have spent a lifetime accumulating are not eaten up by costly legal battles after your death which arise simply because no action was taken to plan for the distribution of your estate.
We have experienced lawyers on our team who specialise in this important area of law. Please contact us to discuss how we can best assist you in planning for the future.