You may have heard the term “Estate Planning.” This is the term used to bring together all the life and death considerations relating to your health and your wealth. It is a dynamic process during your life: it is not a “once-only event”.

Life considerations:

Life considerations relate to what happens if you lose capacity to manage your own financial and health affairs, while you are alive. It is important that Enduring Powers of Attorney and Enduring Guardian documents be completed. They should nominate someone you trust to make these decisions for you. You may even need an Advanced Healthcare Directive to cover the particularities of your preferences for health care, for religious or other reasons.

Having these documents ensures that your health and wealth will be managed to the best extent possible, when you are alive. It also goes a long way to eliminating the stress for your family members as you age.

Death considerations:

Death considerations relate to your will which, amongst a raft of other things, should specify who you want to be your executors and how you want them to distribute your assets on your death. If you die without a will, or your will is found to be invalid, a court-appointed administrator will distribute your assets based on a predetermined formula, which may have very different results from what you intended.

Your will may also include a testamentary trust or trusts if, for example, you have a child with special needs or a cause for which you may want to make continuing provision. Also, generally, but particularly in blended families, care must be taken to have fairness applying to the children of existing and prior relationships lest, after your death, lest there be legal claims (family provision claims) against your estate by disgruntled beneficiaries.

When you pass on – if you have property of certain amounts and nature to be distributed to nominated beneficiaries, the executors of your estate will need to have Wilson Haynes apply for Probate. This is a formal certification by the Supreme Court that the will is valid, and its terms can be given effect to (subject to any subsequent challenges by parties who believe that they have a legal entitlement to a part of your estate.)

Superannuation, technically, is not a part of your estate (assets) under the control of your executors when you pass. What happens to your superannuation is governed by the Trustee of the fund, and we encourage you to ensure that you have a current binding death benefit nomination form lodged with the trustee of your fund. More than likely, you should direct the Trustee of your Superannuation that, on your death, he/she is to pay the proceeds of your super to the executor of your estate, to be distributed in accordance with the provisions of your will.

If you have a self-managed superannuation fund, similar provisions apply, but there are certain specifics that need to be checked to ensure that your fund remains a complying one, in varying circumstances that may apply to you.

Reviews of your Estate Plan should occur every 5 years as a minimum, or earlier, especially when you have purchased or sold property; a spouse or partner has died; you enter a marriage or de-facto relationship; you have divorced or separated.

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To learn more about this topic
please contact Wilson Haynes Law on 07 5536 3055
or via email admin@wilsonhayneslaw.com.au

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