WILLS & ESTATE PLANNING

Estate Planning means planning for your death or incapacity by doing things like making a Will, an Enduring Power of Attorney, an Enduring Power of Guardianship and a Binding Death Benefit Nomination for your superannuation.

Making a Will

The most important part of estate planning is making your will. Your will may be simple or complex, according to your particular circumstances. The most important thing is to make sure that your will is both valid and effective.

Making a valid will requires that your will be properly signed and witnessed. It also requires that you have "testamentary capacity" when you sign your will, and that you understand and approve the terms of your will.

An effective will is one that accomplishes what you want it to accomplish. This requires an assessment of your wishes in light of your personal and family circumstances, and an application of the legal principles of Succession Law.

If you are house-bound or in hospital, or if you have a family member who needs an urgent will, we can make a house call or hospital visit.

Wills with Testamentary Trusts

Your will may include a "testamentary trust." This is a type of trust that can continue, if you wish, long after you have passed away.

Testamentary Trusts are commonly used:

·        To set up a tax-effective structure for your children or other beneficiaries.

·        To protect your estate from the potential risk of family breakdown or other financial setbacks among your children or other beneficiaries.

·        To provide for disabled children, or beneficiaries with special needs.

Mutual Wills

You can change your will at any time, while you retain the mental capacity to do so. Sometimes it is desirable to make an agreement (usually with a spouse) that a will is not to be changed without someone else's (your spouse's) consent. For example, if you and your spouse each have children from a previous marriage, you might want to leave your estates to each other, with a condition that all of your children and your spouse's children share equally when you have both passed on. But if you leave everything to your spouse in your will, he/she is then free to make a new will leaving everything to his/her children alone (or to his/her new spouse). "Mutual Wills" are one method of ensuring that your estate will go where you want it to go, under your spouse's will as well as under your own will.

Mutual Wills require the making of two wills, as well as a separate contract that says you both will not change the wills.

Enduring Power of Attorney ("EPA")

An important part of your estate planning is preparing for the possibility that you may become incapacitated. This means preparing an Enduring Power of Attorney.

An EPA appoints one or more people to act on your behalf. Your "attorney" is the person you appoint to manage your affairs under your EPA. Your EPA can also give specific instructions, or specify limitations on how your attorney is to act on your behalf.

   Advance Care Directive (“ACD”)

Enduring powers of attorney and advance care directive are different in that they deal with different aspects of peoples lives. They are both arrangements which allow a person to plan ahead, thereby providing a possible alternative to the involvement of the SACAT at a later stage in someone’s life should they become legally incapacitated.

Business Succession Planning

If you have your own business, your estate plan should include business succession planning. Business succession planning involves making sure that your business is able to carry on without you. This can involve, for example, taking out insurance, and, if you have partners or co-shareholders, entering into a Buy/Sell Agreement or a Shareholders Agreement.

Superannuation

When you pass away, your superannuation is paid out as "death benefits." This will include any life insurance you might have within your superannuation. The basic rule with your superannuation is that the trustee of the super fund will determine to whom the death benefits will be paid (subject to certain limited categories of potential recipients).

Some super funds allow you to make a "death benefit nomination" directing the fund trustee about who you want to receive the death benefits, but it is still up to the trustee to decide whether or not to comply with your direction. Some (but not all) super funds allow you to make a "binding death benefit nomination") ("BDBN") that bind the trustee to pay the death benefits in accordance with your directions.

If you have a self-managed super fund ("SMSF"), you should ensure that the rules of the fund allow you to make a BDBN.