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Wills & Estate Planning

 

A Will is just one part of the Estate Plan.  We will help you with an Estate Plan tailored to your specific circumstances to provide you with certainty about how your assets are dealt with if you lose capacity or pass away. Our services include:

  • Wills and estate planning
  • Testamentary Trusts
  • Enduring powers of attorney;
  • Advance health directives
  • General powers of attorney
  • Superannuation nominations including binding death benefit nominations
  • Deeds of Succession for Trusts

What is Estate Planning?

Estate planning is more than just a Will.  It can be a little confronting as it involves considering situations that most of us prefer not to think about, such as losing capacity or dying but it is critical to ensure that your intentions are given effect in either of those situations.

Consideration needs to be given to many matters including:

  • who receives your superannuation benefits
  • who receives your life insurance proceeds
  • who will take over control of your private company
  • who will take over the controlling role of your family trust
  • who will receive your ‘share’ of jointly held property
  • who would manage your estate
  • who receives your estate
  • who can make financial decisions for you
  • who makes personal (including health) decisions if you lose capacity
  • who could challenge your Will and what strategies can you put in place to resist a successful challenge

We work with you (and your financial advisors if required) to structure your affairs to give you comfort and peace of mind.

Making a Will

A will is a legal document that:

  • directs how your assets are to be distributed when you die;
  • appoints somebody, your executor, to manage and finalise your affairs.

Your will can also provide other directions such as the appointment of guardians for minor children and your wishes regarding funeral arrangements.

A carefully drafted will provides clarity for your loved ones and helps to avoid expensive disputes and estate litigation.

Once you have a valid will, it is important to review it regularly. Major events may trigger the need to review and update your will, for example, if:

  • you marry, separate, divorce, or start a new relationship
  • you have a child or adopt a child
  • a beneficiary or executor named in your will dies
  • there is a major change to your health
  • you buy or sell property, start a business, or acquire company interests
  • you receive an inheritance or unexpected windfall
  • there are changes to your superannuation, personal insurance, or tax levels
  • you become involved in a trust

What happens if you die without a Will?

Dying without a Will is referred to as dying intestate.

If there is no Will:

  • an executor has not been appointed to administer the estate. Someone will need to administer the estate.  The legislation in Queensland lists an order of priority as to who may become the Administrator.  Disputes can arise as to who is the appropriate person to administer the estate.
  • there are no named beneficiaries. The legislation in Queensland sets out who would receive your estate.  These rules are commonly referred to as the Rules of Intestacy.  Your unique circumstances are not considered under the Rules of Intestacy and the distribution of your assets may not give effect to your intentions.

What is a Testamentary Trust?

A testamentary trust is a trust contained in a will and can help protect assets and vulnerable beneficiaries. The trust comes into effect when you die, and can help you to financially support beneficiaries without giving them direct control of the assets.

With a simple Will, the beneficiary:

  • receives their inheritance when the administration of the estate is completed, regardless of their circumstances;
  • is free to use the benefit that they receive as they choose.

With a testamentary trust, the beneficiary:

  • may be allocated a ‘share’ of the estate to be held on a trust administered by a trustee;
  • may be one of a number of beneficiaries who could benefit from the trust and receive income or capital from the trust only when the trustee decides to pay it to them;
  • may be the trustee or one of the trustees.

Testamentary trusts may also deliver tax benefits which you should discuss with your financial advisor., A testamentary trust does not suit  everyone and we can discuss the advantages and disadvantages in your specific circumstances to enable you to make an informed decision..  

Powers of Attorney

A general power of attorney authorises somebody to manage certain aspects of your financial affairs on your behalf while you still have capacity to make decisions about such matters yourself. For example, you may want somebody to help sell your motor vehicle while you are overseas.

A private company (for example a Pty Ltd company) may authorise a person to manage the financial affairs of the company.  This may be useful if the company conducts a business that would be disrupted if a director or shareholder loses capacity or dies.

An enduring power of attorney authorises somebody to make certain financial and/or personal (including health) decisions on your behalf.  You can appoint somebody to make financial decisions for you even if you still have capacity to make decisions about such matters yourself however the difference between the general power of attorney and the enduring power of attorney is that the power to make financial decisions endures even if you lose capacity.  Companies can’t lose capacity and can only make a general power of attorney.

You can:

  • determine how your attorneys make their decisions if you appoint more than one.
  • set terms to restrict or enhance your attorney’s power.
  • state your views, preferences or wishes.
  • oblige your attorneys to give notice to you or another person when they are exercising their power as an attorney.

The power of attorney is a very powerful document.  We will work with you to consider how your power of attorney should be structured to give effect to your intentions and tailor the document to your specific circumstances.

To make a power of attorney you must be capable of understanding the effect of the document you are signing. It is therefore important to put such documents in place while you still have capacity to do so.

Advance Health Directives

An advance health directive allows you to make directions about certain health matters. If you have lost capacity to make health decisions for yourself, your attorney can review your advance health directive and consent to health care in accordance with your directions.

If you lose capacity and don’t have an advance health directive, your attorney will be faced with making health decisions for you based on what you may have told them or what they believe is the ‘right thing’ to do.  If you have an advance health directive, not only can you make your directions known, you may alleviate some guilt for the decision maker or make it easier for them to justify the decision to others.

When making an advance health directive, you meet with your Doctor who will explain the effect of the directions that you intend making.  The Doctor signs the advance health directive to confirm the information given.  You then meet with us to sign the document.

If you need assistance, contact [email protected] or call 07 5443 9600.