What is Estate Planning
No-one wants to think about death or incapacity in the prime of their life.
An estate plan includes your will as well as any other directions regarding how you want your assets distributed after your death. It includes documents that govern how you will be cared for, medically and financially, if you fall ill or lose the capacity to make those decisions yourself.
You must be over 18 and mentally competent when you draw up the legal agreements that form your estate plan. Key documents might include:
- Powers of attorney
- Advanced care directive
- Superannuation death nominations
- Testamentary Trust
You may want to consult an adviser and a lawyer to determine any tax and legal implications and to ensure that you achieve the optimal financial & legal result for your dependants. A good estate plan should minimise the tax paid by your heirs, and help avoid any family squabbles.
A will takes effect when you die. It can cover things like how your assets will be shared, who will look after your children if they are still young, what trusts you want established, how much money you'd like donated to charities and even instructions about your funeral.
Keep your will valid and up to date as your legal rights change, specifically if you marry, divorce or separate; have children or grandchildren; if your spouse or beneficiaries die; or if you have a significant change in financial circumstances.
What if I die without a will?
If you die intestate (without a will) or your will is invalid, an administrator appointed by the court pays your bills and taxes from your assets, then distributes the remainder, based on a pre-determined formula, which may not be how you intended your assets to be distributed.
If you die intestate and don't have any living relatives, your estate is paid to the state government.
Powers of Attorney
Appointing someone as your power of attorney gives them the legal authority to look after your affairs on your behalf.
Powers of attorney depend on which state or territory you are in: they can refer to just financial powers, or they might include broader guardianship powers.
Generally speaking, there are different types of power of attorney:
- A general power of attorney is where you appoint someone to make financial and legal decisions for you, usually for a specified period of time, for example if you're overseas and unable to manage your legal affairs at home. This person's appointment becomes invalid if you lose the capacity to make decisions for yourself.
- An enduring power of attorney is where you appoint a person to make financial and legal decisions for you if you lose the capacity to make your own decisions.
Advanced Care Directive
Sometimes a person will want to make clear what their wishes, preferences, and instructions are for future health care, living arrangements, personal matters and for what happens when they are nearing the end of their life. They may also want to appoint one or more people who can act as substitute decision makers for them when they are no longer able to make these decisions themselves. Prior to July 2014 there were three forms that could be used to express a person's wishes – which were Enduring Power of Guardianship, Medical Power of Attorney, and Anticipatory Directions. These were replaced by Advance Care Directives, the law for which came into force on 1 July 2014.The Advance Care Directive is the only document you need to use to express your wishes, if you feel that this is what you want to do. It is a legal form, and it gives the people who care for you a clear understanding of what you would like if you ever lost the ability to communicate.
Some important points to note about the Advance Care Directives are:
- If you already have an Enduring Power of Guardianship, a Medical Power of Attorney, and/or an Anticipatory Direction, completed prior to 1 July 2014, these will continue to be legal. You do not have to complete an Advance Care Directive unless you wish to.
- An Advance Care Directive cannot be used to provide direction on your financial matters. That is the purpose of an Enduring Power of Attorney
- You cannot complete an Advance Care Directive if you are under 18 years of age.
- No one can force you to either make an Advance Care Directive or include in your Advance Care Directive anything that is against your wishes. Any person who tries to force or coerce you in this way is committing an offence against the law.
You can change your Advance Care Directive at any time, given you still have the ability to make your own decisions, by completing a new Advance Care Directive Form.
Superannuation Death Nominations
If you die, your super fund trustee normally pays your death benefit to one or more of your dependants or to your estate.
For super death benefits, the term 'dependants' includes:
- Your spouse (this includes same-sex de facto partners)
- Your children
- People with whom you had an interdependency relationship
- People who depend on you financially
Most super funds allow you nominate who you wish to receive your death benefit, either as a non-binding or binding nomination.
If you don't nominate someone, the super fund trustee will decide who receives your funds which can lead to delays and may cause dissension in your family.
A binding nomination leaves your super fund trustee with no choice as to who receives your death benefit. You choose whether the money is distributed to:
- One or more dependants; or
- Your legal personal representative, who must distribute the funds according to your will
A non-binding nomination guides the super fund trustee on who will receive your super benefits. However, the trustee still has the final say, especially if you nominate someone who isn't a 'dependant'. The trustee is not required to follow the instructions in your will.
A testamentary trust is a trust set out in a will that only takes effect when the person who has created the will, dies. Testamentary trusts are usually set up to protect assets.
Here are some reasons why you might create a testamentary trust:
- The beneficiaries are minors (under 18 - 21 years old)
- The beneficiaries have diminished mental capacity
- You do not trust the beneficiary to use their inheritance wisely
- You do not want family assets split as part of a divorce settlement
- You do not want family assets to become part of bankruptcy proceedings
A trust will be administered by a trustee who is usually appointed in the will.
A trustee must look after the assets for the benefit of the beneficiaries until the trust expires.
The expiry date of a trust will be a specific date such as when a minor reaches a certain age or a beneficiary achieves a certain goal or milestone, like getting married or attaining a specific qualification.
We can help you to create an estate plan so that your heirs receive their inheritance in the most effective way. We can also refer you to a lawyer if you would like us to.
The best estate plan will result from taking a wholistic approach by making both financial & legal considerations.