It is understandable that most people don’t want to think about dying, and a lot of people don’t turn their mind to what will happen with their assets when they die.
Having a valid will ensures that your assets, money and belongings end up where you want them to be after your passing.
You’ve decided that you need a will. What information do your lawyers need from you to prepare your will?
An estate planning meeting can be somewhat confronting. Your lawyer (often someone you’ve never met before), will ask a lot of personal questions about you and your situation, including current and former relationships, whether you have or intend to have children (or more children), the assets you own, money you have in the bank and any funeral wishes you have etc.
Decisions about who you want to receive your assets and what you want done with them are not easy to make and they are often things people haven’t considered before their meeting. We work with you, and give you the advice you need to make informed decisions so that your estate can be distributed in accordance with your wishes.
Prior to your meeting with a lawyer, there are a few things you should consider. Setting these out in a list or table can sometimes be helpful and will assist your lawyer to get a greater understanding of you and your situation. These matters include:
- Your relationship status. If you are in a de facto relationship, whether you intend to marry. If you were previously married, whether you have finalised a divorce and property settlement etc.
- Any children you have, including step children and adopted children, and if you intend to have more children. If you don’t have children, whether you intend to have children in the future.
- Your assets, which may include home, car, cash, shares, jewellery, artwork, superannuation and life insurance.
- How your assets are owned e.g. joint bank accounts, joint property, company assets.
- Any interests you have in companies and/or trusts.
- Who you wish to appoint as an executor.
- Who you wish to gift your estate to.
- If you would like to set an age for when your minor beneficiaries receive their share of your estate.
- If you have minor children, who you wish to appoint as guardian of those children in the event of the unfortunate death of both parents.
- Any funeral arrangements you have or wishes you have in relation to your funeral.
Appointing an executor or executors
You may have up to four executors.
Your executor or executors will be responsible for administering your estate in accordance with your will. They will be required to arrange your funeral, pay any debts, collect your assets and sell any assets if required, and then distribute your assets (or the proceeds of sale) to the beneficiaries as set out in your will.
You should ensure that whomever you choose as your executor is (or are) someone you trust. You may wish to consult with your proposed executor prior to your meeting to let them know you wish to appoint them.
If you appoint more than one executor, it is recommended you appoint people who will be able to work together. Disputes between executors may cause unnecessary delays in the administration of your estate and an added cost, which is likely to be borne by your estate.
Choosing your beneficiaries
You may have a clear idea of who you wish to receive your assets on your passing.
If you are unsure of how you wish for your estate to be distributed, you may wish to consider if there are specific items you would like to go to a particular person, or certain amounts to family members, friends or charities.
You are able to do with your estate as you wish. This may include specifically listing assets and beneficiaries, or specifying percentages, gifting to charities, allowing a person to live in your home until a certain date or event etc.
These are all things you may wish to consider, and things we would be happy to discuss with you at your estate planning meeting.
In a previous blog, Jenna Hutchinson spoke of the risks of Family Provision Claims and who is eligible to bring a claim. That blog can be found here.
Do you need an Enduring Power of Attorney?
An Enduring Power of Attorney (“EPOA”) is a document, which appoints another person to make decisions on your behalf when you are unable to make them for yourself.
An EPOA allows your attorney to make decisions in relation to personal and health matters, and financial matters. Your attorney will be able to make almost any decision you can make for yourself (your attorney cannot make decisions about your will or appointing another person as your attorney, voting, consenting to marriage or adoption, body tissue donation, sterilisation, experimental health care and other special health matters).
There are responsibilities imposed on an attorney by the Powers of Attorney Act 1998 (Qld). These responsibilities include:
- Keep records of all financial decisions made on your behalf.
- Keep your property separate from their own (unless jointly owned).
- Avoiding conflicts of your interests with their own interests.
- Getting approval for unauthorised financial transactions.
- Unless specifically set out in the EPOA, avoid making gifts.
- Exercising their power honestly and with reasonable care.
- Abiding by general and health-care principles.
- If more than one attorney, consult with each other or act jointly in making decisions on your behalf.
In the event you are no longer able to make decisions for yourself, and there are concerns about the actions of your attorney, the courts and the Adult Guardian have the power to protect your interests. While you are still able to make decisions for yourself, you are able to change or revoke your EPOA.
Much like your executor, you should ensure your attorney is someone you trust.
Your attorney can also not be bankrupt or your paid carer or health care provider.
Get in touch with us
If you have any questions in relation to your Will or EPOA, or wish to arrange an estate planning appointment, please contact Turner Freeman Lawyers’ Wills and Estates Team on 07 3025 9000. Jenna Hutchinson and Laura Hagan practise exclusively in Succession Law and would be happy to have a chat with you.