An estate plan includes your will as well as any other directions on how you want your assets distributed after your death. It also includes documents that govern how you will be cared for, medically and financially, if you become unable to make your own decisions in the future.
You must be over 18 and have mental capacity to implement the legal documents that make up your estate plan. Key documents include:
Superannuation death nominations
Powers of attorney
Power of guardianship
Advance health directive
A will only takes effect when you die. It can cover things like how your assets will be distributed, who will look after your children if they are still minors, what trusts you want established, who will assume directorship of companies/businesses that you are involved in, how much money you would like donated to charities and even instructions about your funeral.
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 pre-determined formula, which may have very different results than you may have intended.
If you die without a valid will and don’t have any living relatives, your assets go to the state government.
If you have made a binding nomination in your superannuation or insurance policies, the beneficiaries named will override anyone mentioned in your will.
There are steps we can take to help you ensure your assets end up with the people you intend.
A testamentary trust is a trust that can be included in a will that can only come into effect upon the death of the maker of the will.
Here are some reasons why you would create a testamentary trust:
The beneficiaries are minors (under 18 – 21 years old)
The beneficiaries have diminished mental capacity or health issues
You do not trust the beneficiary to use their inheritance wisely
You do not want family assets split as part of a divorce settlement
You have a blended family and wish to ensure a fair distribution of assets after your death
You wish to create a life tenancy
You do not want family assets to become part of bankruptcy proceedings
Additional considerations while you are alive
We strongly recommend that your estate plan includes an Enduring Power of Attorney and an Appointment of Enduring Guardian, which are documents that operate while you are alive and give legal authority to a designated person or persons to manage your financial and health matters in the event that you become of unsound mind or are simply unable to look after yourself, for whatever reason.
You can also prepare an Advance Healthcare Directive to assist your legal appointees and family when making difficult decisions regarding medical treatment and related matters when you have lost your capacity to make those decisions for yourself. Having an Advance Healthcare Directive in place can overcome conflict and stress in difficult situations where the views of loved ones are often divergent and may not align with your own personal wishes. They also allow you to take control of your future health decisions while you still have the mental capacity to do so.
Review of your Estate Plan:
You may have already established an estate plan, however our view is that it is an ongoing process, not a one-time event. Your plan should be regularly reviewed and updated with your solicitor, as your family and financial situations (and laws) change over your lifetime.
We recommend reviewing your estate plan on a 5 yearly basis as a minimum, especially in the following circumstances:
Purchase or sale of property
Purchase or sale of business/shares
Entering a marriage or de facto relationship
Divorce and separation
Death of your spouse (married or de facto)
Call us on 07 5536 3055 to make a no-obligation appointment with one of our solicitors.
Cost Free Initial Consultation
If you are interested in knowing more about how we might be able to assist you, please call 07 5536 3055 to make a cost free initial, 40 minute consultation with our Principal, Mr Jim Wilson.