Have you taken the time to secure the future of your assets? If not, it may be time that you consider your options regarding estate planning.
When considering making a Will you need to give very careful consideration to your individual circumstances and the assets and people you wish to protect. Often, what most people require is an estate plan.
An estate plan does not need be complex. Usually, estate plans are relatively straight forward and may involve:
Making a Will with the inclusion of trusts (if applicable)
Making an Enduring Power of Attorney or an Advance Health Directive (or both)
A consideration of superannuation and life assurance death benefit nominations
In addition, an estate plan can be expanded to include and address matters such as:
Assets held in a joint tenancy (eg joint bank accounts, shares held jointly and real property). These assets are not covered by a Will
Self-managed superannuation funds: (Who will control the fund when you die? What about death benefit nominations? Do you need a death benefit guardian? What about the impacts of blended families?)
Discretionary/family trusts: (Who will control the trust when you die? What about any unpaid loans and unpaid present entitlements?)
Company structures and company assets
Business succession; partnership agreements; shareholder agreements; buy-in/buy-out options; unit holder agreements; and business life insurance
Inheritance succession for blended families
Risk management recommendations and strategies to protect assets from potential disputes
Depending on the complexity of your individual or business circumstances, when preparing an estate plan, you may need to consider obtaining the advice of your financial planner and financial adviser, in addition to, and in conjunction with, the legal advice provided by us.
As your life’s circumstances change and evolve so should your estate plan. Sometimes, this means putting in place an estate plan which is only temporary and then reviewing this plan when you feel comfortable with your circumstances and affairs. It is recommended that your estate plan be reviewed whenever your circumstances change or, at the very least, every 2 to 5 years.
What you need to know about making a Will
When you make a Will, you should undertake a comprehensive review of your individual circumstances. This involves a consideration or understanding of:
All health issues and ailments
Current, and past, marital status - single/ divorced/ de facto/ married
The value of your assets and liabilities; including any digital assets and any assets and liabilities outside of Queensland and Australia
Family circumstances, relationships, family disputes and breakdowns and estranged children
Circumstances of potential beneficiaries – bankruptcy, potential bankruptcy, death or incapacity
Protecting underage beneficiaries such as children including the establishment of age appropriate and protective trusts
The appointment of executors and alternate executors, and their individual circumstances
The appointment of trustees and alternate trustees, and their individual circumstances
Family catastrophes and making provision for this
The appointment of testamentary guardians, including alternates, and when does the appointment take effect
Specific gifts of value and of a sentimental nature
Court orders, judgments, and agreements (eg binding financial agreements, spousal maintenance, child support) and what impact, if any, this will have on the value of any assets, and whether adequate provision has been or will be made for a new spouse/de-facto
Non-binding special wishes, directions, guidance notes to executors, trustees, and testamentary guardians as to how you want assets and children matters addressed (eg education, religion and the like)
Funeral plans and proceedings, burial or cremation arrangements, or donating your body to science
Organ donor registration through Medicare
Some Wills can be very complex and very expensive to establish, especially if you are seeking to achieve intended tax outcomes and provide your beneficiaries with some family law protections from claims by future hostile spouses or partners. Wills of this type and nature involve the establishment of a Testamentary Discretionary Trust under the Will. This type of trust functions in a similar way to a discretionary family trust, with certain provisions of the Will operating like a trust deed.
What happens if you die without a Will?
If you die without a Will or if you die and your Will cannot be located it is usually presumed, in the law, that the deceased died “intestate”. This means without a Will. Contrary to common belief, if you die without a Will your estate does not automatically pass to the State Government. The Succession Act 1981 (Qld) sets out the order eligible family members will inherit your estate should you die without a Will. Your estate will only fall to the State Government if you die without eligible family members.
When you die without a Will it is necessary for the Supreme Court to appoint an administrator to administer a deceased estate. A Grant of Letters of Administration made by the Supreme Court is a document conferring official recognition on an administrator to control and administer the estate. In addition, the Grant vests the property and assets of a deceased in the administrator. The Grant of Letters of Administration gives the administrator the same legal powers as an executor (who is appointed under a valid Will).
If you die without a Will:
The estate distribution process is slow, meaning it takes longer for any beneficiaries to obtain access to the assets of your estate
Your final wishes are not in any way upheld
You do not get to specify how your assets should be distributed
You will not be able to provide for your family as you see best
Estate litigation can become more prevalent
WHERE TO SOURCE HELP WITH WILLS AND ESTATE PLANNING
If you would like to seek advice in relation to a Will and estate plan contact John and the team at JDS Lawyers today.