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Home | Will, Will Disputes & Estate Law | Estate Planning

Planning your Estate

The process of planning ahead as you grow older, in case of your incapacity or death, is often referred to as estate planning. Effective estate planning ensures that the wealth and assets you have accumulated over your lifetime are transferred easily and hassle free to the people you choose.

Modern society is becoming more complex, so planning ahead is vital. Make sure you get the right advice for your situation.

A well developed estate plan will help avoid unnecessary disputes, uncertainty about how assets are to be dealt with, and assist in protecting against avoidable wastage of your estate. Making proper arrangements can also help to alleviate some of the stress your loved ones may experience during a time that is naturally difficult and emotional.

Avoiding Intestacy

If you die without a will, your estate will pass to your closest relative/s or your next of kin, in accordance with the laws applicable in your state. Intestacy can be more time consuming, costly and burdensome on your surviving relatives and family because your last wishes have not been recorded anywhere.

Without a valid will, there may be a dispute about who should arrange your funeral and burial, who should administer your estate, and who is entitled to receive an interest in your assets. Extra cost and complexity is involved in dealing with an intestate estate because your next-of-kin will need to prove they are in fact the person entitled to administer your estate. These issues can be particularly upsetting due to the time at which they often arise. 

Peace of Mind

The feeling of relief and satisfaction that your affairs are in order and that things will be taken care of properly and with minimal disruption after your death cannot be underestimated. Knowing that you have done all you can to ease the difficult time after your death for your loved ones is worth the unsavoury task of considering your death and the impact it will have. Adequate estate planning prevents disputes and avoids unnecessary litigation particularly when experienced and qualified advice has been obtained.

FAQ

Why should I think about planning my estate or succession plan?

Why should I think about planning my estate or succession plan?

Every person should think about how they wish to leave their estate and how their wishes can be achieved. Having a plan is particularly important for people with complex family structures, great personal wealth or beneficiaries who may need protection. If there is a risk that any of your intended beneficiaries may become bankrupt, divorced or incapacitated, or they have other issues that need to be considered, including disabilities or special needs, discussing your succession plans with an experienced estate planner will help consider and identify appropriate strategies so your wishes may be carried out effectively.

There can be significant tax advantages as well as more flexibility and control for your beneficiaries if your estate plan is managed and implemented correctly.

Important things to consider

Important things to Consider

There are many factors to consider when planning for the disposal of all of the assets you currently own, and those that you may or may not have on the date of your death. Our experienced solicitors can help you consider your options, as often, people are not aware of all of the matters they should consider and how they can achieve their wishes.

Every person and family is different, and no one plan will suit each situation. It is vital that you discuss your wishes with an experienced estate planner to ensure your estate can be effectively managed and distributed after your death.

Are promises I make about my will legally binding?

Are promises I make about my will legally binding?

The general rule regarding promises about wills and inheritances is that they are not binding unless there is a form of contract or agreement reached. In some cases, promises that have been made need to be carefully considered as if they are not kept, the Court may enforce the promise as a matter of equity. This is particularly so if a person relies upon a promise and then suffers detriment as a result of that promise not being kept.

If you are in any doubt regarding anything you have said about your will or how you plan to leave your estate, you should discuss the matter with an estate planner to consider what consequences there may be for your estate. Planning for such eventualities can help avoid legal disputes and problems after your death.

Who do I need to plan to provide for?

Who do I need to plan to provide for?

In Australia, we enjoy freedom of testation. This means we can leave our wills and estates as we choose. There are circumstances, however, where the Court may be asked to interfere with a will or testamentary directions. This often occurs when people are not adequately provided for in an estate, either by design or by changes in the estate that result in an unexpected or unintended distribution after death.

An estate planner will assist you consider your moral obligations and can discuss with you appropriate methods of ensuring your wishes are carried out.

What do I need to think about?

What do I need to think about?

When considering your estate plan, knowing and understanding how you own your assets and interests, as well as what debts are owed or secured against particular assets are vital. It is often a good idea to discuss with your financial advisor or accountant (if you have one) how your financial interests are structured so that when you think about how those assets may be disposed of after your death, the correct methods can be used.

For example, different business structures involving companies, shares, partnerships, joint ventures, deeds or other agreements may all place limits or describe how any interests may be dealt with. Similarly, if you have any business interests, you should consider what should happen with those interests after your death and who may carry the business on.

How do I start estate planning?

How do I start estate planning?

Discussing your circumstances with an experienced estate planner will then likely help you decide what you wish to do with your estate after your death. An estate planner can offer suggestions, give advice and provide options for different methods of achieving the outcome you want.

Taking a holistic view of all of your present circumstances is the best place to start. This can include thinking about your assets, liabilities and people you want to benefit from your estate.

If you are unsure of your assets, how you own various interests or how you wish to leave your estate, an estate planner can assist investigate and provide a clear explanation of your circumstances and options.

What if I am concerned about losing the capacity to make my will?

What if I am concerned about losing the capacity to make my will?

If you are worried about making a will that may be challenged, or you think you are at risk of losing the ability to make a will later, taking appropriate steps now can assist protect your wishes and ensure your estate is distributed as you intend.

An estate planner can discuss with you methods to protect your interests which may include obtaining medical evidence from a treating doctor or geriatrician to provide evidence of competency at or around the time an estate plan or will may is prepared.

Does Superannuation automatically form part of your estate?

Does Superannuation automatically form part of your estate?

No.

Under the Superannuation Industry Supervision Act, the trustee of a superannuation trust can pay your superannuation and any associated life insurance policy or death benefits from your available superannuation funds to your dependents or the legal personal representative of your estate. The trustee is provided with a broad discretion to make this decision based on information or evidence it is provided with. This means that even if you do have a will, the terms of your will may not be relevant to who receives a benefit from your superannuation funds. Therefore, in addition to drafting a will, it is important to consider making a binding death nomination to direct the superannuation trustee to pay the funds to the people you nominate.

You can make binding nominations to pay all or some of the benefits held in your superannuation fund to either your estate or to specific people. Binding death nominations also generally expire every 3 years and need to be renewed in order to remain effective.

How can I minimise the effect of taxes on my estate?

How can I minimise the effect of taxes on my estate?

Careful planning with your solicitor and a qualified tax accountant may allow you to minimise, delay or avoid certain tax consequences upon the distribution of your estate and/or superannuation funds. For example, certain categories of people can receive a superannuation death benefit tax free.

Certain types of testamentary trusts can also allow any income earned by an estate to be split or applied with discretion to allow a more tax effective model of distribution to be adopted.

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