An effective estate plan generally starts with a valid will that provides clarity for your loved ones and makes the most of your hard-earned assets. Your will should appoint one or more people you trust to administer your estate, and direct how your property will be left to your beneficiaries. Your will can also appoint guardians for minor children and provide directions for funeral arrangements.
When making your will, consider:
- Who you would like (and has capacity) to manage your affairs after you die (your executor/s)
- How you would like your assets distributed and who they should go to (your beneficiaries)
- Who might be a suitable guardian to appoint if you have young children and you were to die before they were old enough to look after themselves
- Whether you should create one or more trusts to help protect assets and vulnerable beneficiaries
- The provisions you will make for children from a previous relationship, if relevant, and whether your partner has children from a previous relationship
- What provisions you should make for a de facto or same sex partner
- Whether there are certain individuals you wish to exclude as beneficiaries who might otherwise feel entitled to receive an inheritance
- The beneficiaries of your superannuation fund or life insurance
Powers of Attorney
A power of attorney is a legal document authorising somebody you trust to act on your behalf with respect to certain legal and financial matters. This person is known as your attorney. Your attorney can act for you if, for example, you are travelling, have an accident and are hospitalised, or simply reach a stage where you need more help managing certain things. Your attorney will have significant power so who you choose requires careful consideration. We can explain the various options for structuring your power of attorney so you can make an informed decision and have documents prepared that are tailored to your needs.
If you have minor or vulnerable beneficiaries, a testamentary trust might be the right tool to help you look after them. A testamentary trust is made under a will and begins on the death of the testator. Trusts enable you to financially support someone without giving them direct control of assets. Testamentary trusts can also help protect your estate from third party claims.
There can also be potential tax benefits of using a testamentary trust which you should discuss with a lawyer and accountant. As with all forms of estate planning, a testamentary trust is not right for everyone. The administration of a trust costs money each year that it operates. This will include annual tax and auditing costs and could also include the trustee’s professional fees. We can help you decide whether a testamentary trust is right for your circumstances.
Business and Farm Succession Planning
We can structure your affairs to help protect certain assets such as business and farming interests for future generations, and implement strategies to address the inevitable and the unforeseen.
A business succession plan sets out what will happen in the event of divorce, illness, disability, retirement, death, bankruptcy, etc. Similarly, a farm succession plan sets out the processes that will be implemented to sustain a family farming enterprise so it can be passed on to future generations. A plan can help support the viability and longevity of the farm, provide a retirement plan and financial security for retiring family members, and deliver workable arrangements for remaining and incoming members.
Guidance for Executors – Estate Administration
After a person dies, someone needs to look after their property and finalise their financial and legal affairs. This is referred to as “estate administration” and is typically carried out by the executor/s appointed in the deceased person’s will or an administrator (appointed by the court) if a person dies intestate (without a will).
Before administering an estate, it is often necessary to obtain a grant of probate from the Supreme Court. The grant of probate proves the will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the will. In the case of a person who dies intestate, a family member will usually need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised.
Executors and administrators have many responsibilities which typically include:
- making funeral arrangements
- identifying and protecting assets
- applying for a grant of probate or letters of administration
- dealing with the deceased’s account providers and government authorities
- claiming funds under superannuation and life policies
- distributing assets, and transferring property to beneficiaries
Death is one of those certainties in life that, while unpleasant to think about, should be given some thought and planning. We are experienced in all aspects of estate planning and estate administration. We can help you build a plan that fits the needs of you and your family or help you through the legal process when a loved one dies, providing advice and guidance so you can finalise the estate as smoothly and efficiently as possible.
If you need assistance, contact [email protected] or call 02 6736 1888 for expert legal advice.