ESTATE PLANNING

A professionally prepared will is an investment for your beneficiaries. A professionally prepared will eliminates the risk of your estate being dissipated by potentially thousands of dollars in legal costs that may arise as a result of a poorly prepared will. As well as wills, the Wills & Estates Team provides full Estate Planning services as set out below, working in conjunction with your financial adviser where appropriate.

Basic Will

The type of will used by most people, mainly appointing executors and alternative executors, and giving away your entire estate.

Standard Will

Where you need a will that contains a few more provisions than a basic will.

Complex Will

Where your family situation or financial situation is more complex, it makes sense to have a more detailed will that addresses the complexities. Complex wills include:

• Testamentary Trusts
• Mutual Wills
• Will creating Special Disability Trust

• Testamentary Trusts

  We can establish Testamentary Trusts for you. Testamentary Trusts are used:

   

  • To set up a tax-effective structure for your children or other beneficiaries. You should seek financial advice regarding the potential tax benefits for your beneficiaries. Although a Testamentary Trust costs more than a standard will, the tax benefits for your beneficiaries may far outweigh that cost. In this way, not only does your will make gifts to your beneficiaries, but the fact that you have taken the time, and gone to the expense, of preparing a testamentary trust, is itself a very substantial gift to your beneficiaries. Even if your assets are relatively small, you may have life insurance or superannuation death benefits that should be dealt with in a Testamentary Trust.
  • To protect your estate from family breakdown or other financial setbacks among your children or other beneficiaries. Because nobody knows what the future holds, this alone is sufficient reason why almost everyone should have a Testamentary Trust.
  • To provide for disabled children, or beneficiaries with special needs. (See also Special Disability Trusts. )

 

• Mutual Wills

  If you are making wills with your spouse, it is possible to make an agreement that neither of you will change your wills without the consent of the other. This may be important, for example:

   

  • In case one of you dies and the other re-marries and then makes a new will leaving the entire estate to the new spouse and not to your children; or
  • If you and your spouse each have children from a previous marriage, you may want to leave your estates to each other, with a condition that all of the children share equally when you have both passed on.

 

Unless you have an agreement for Mutual Wills, you and your spouse are free to change your wills at any time. Mutual Wills ensure that your estate will go where you want it to go, under your spouse’s will as well as under your own will.

Although Mutual Wills cost more than standard wills, the provision you make for your beneficiaries, and the certainty provided by Mutual Wills, and the fact that nobody knows what the future holds, often make this a sensible option.

We can advise you about the pros and cons of Mutual Wills, and other options available to protect your estate, and can prepare Mutual Wills for you.

• Special Disability Trust

We can set up a Special Disability Trust for your loved one, either in your will or while you are alive. Taxation and Centrelink concessions are available for the income and assets of these trusts, where the beneficiary of the trust is severely disabled. (Because of restrictions on who qualifies for these concessions, a Special Disability Trust is not suitable for all people with a disability. Sometimes a Testamentary Trust is more appropriate. )

Enduring Power of Attorney (“EPA”)

A Power of Attorney gives someone authority to act on your behalf. An “Enduring” Power of Attorney is a document that continues to be effective if and when you lose mental capacity.

 

An EPA can cover two types of matters:

 

• Financial matters;
• Personal/health matters.

Most people who have an EPA want to ensure that their affairs will be able to managed by someone they trust (not by the Public Trustee or the Adult Guardian) if the time comes when they are unable to manage their own affairs. But an EPA can also be useful in other situations (for example, while you are overseas).

If you do not have an EPA and you lose capacity (e.g. by suffering a stroke, or a severe car accident), it is still possible for a close family member to manage your affairs instead of your affairs being placed in the hands of the Public Trustee or the Adult Guardian. However, in that event, it will require an application to be made to the Guardianship & Administration Tribunal (see below).

We can prepare an EPA for you. We can also advise you in more detail about the pros and cons of having an EPA.

Advance Health Directive (“AHD”)

Perhaps the best way to explain an AHD is to compare it to an EPA. An EPA gives someone authority to make decisions on your behalf, whereas an AHD tells them what decisions you want them to make.

For example, in your AHD you can give a direction as to whether you want to receive particular life-sustaining measures in different medical scenarios (such as if you are in a “persistent vegetative state”).

We can prepare an AHD for you.

Self-Managed Super Fund (“SMSF”)

If your financial adviser recommends that you should have an SMSF, we can set it up for you.

Binding Death Nomination for Superannuation

We can assist you in preparing a binding nomination to the trustee of your superannuation fund (either your SMSF or another super fund). A binding nomination directs the trustee of the super fund about how to pay your death benefits, either to your executor (to be distributed under your will) or to your specified dependant/s.

Outcalls (e.g. to home or hospital)

If you are unable to come to our office to discuss your Estate Planning needs, we can come to you.

Safe Custody

We can hold your will and other documents in our safe custody, free of charge.