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Estate Planning - More than just a matter of making a will - Part 2

Date: May 06, 2008

Authors: LAC Lawyers

Wills

As stated previously in Estate Planning - More than just a matter of making a will Part 1, preparing a will is an important part of estate planning. A thorough and well drafted will determines to a large extent how your affairs are to be dealt with when you’re gone.

Therefore while you can buy a blank will from the newsagent and fill in the details yourself, there are some matters that only a solicitor will be able to assist you with. For instance did you know that your superannuation and your house, for many people their largest assets, often do not pass via your will. Also, despite executing a valid will, it may be subject to challenge by disgruntled family members or others. A solicitor will be able to discuss these aspects with you and advise how to plan for these contingencies. Finally, a solicitor will ensure that the will complies with the relevant formal requirements.

Superannuation

As stated already, a will does not necessarily determine who your super passes to. And this can be important because there can be significant tax benefits depending on how it is distributed. Many super funds nowadays also allow their members to prepare a binding death nomination so you can determine how your super is to be distributed on your death. However each superfund is different and you will need to consider your own circumstances.

Real Estate

Some other assets may not pass according to your will either. For instance if you have bought a house jointly with someone else, depending on how the property is owned, your share of the house may not pass via your will but may automatically pass to the surviving owner/s. This might work out fine in some circumstances, such as where you own the property jointly with your spouse and you want everything to go to him/her anyway, but this wont always be the case and you really should know what will happen to your share of the property if you die.

Testamentary Trusts

One of the ways that a solicitor may be able to help you is to discuss with you the various types and uses of testamentary trusts. The effective use of a testamentary trust can give extraordinary flexibility to your executors to enable significant tax savings while minimising the effect on pensions or other social security provisions. This can be especially important for those with children or elderly or intellectually disabled relatives.
 
One other advantage of trusts is that they can help guard against the follies of youth, by delaying a child’s inheritance until a more appropriate age, while still giving the trustee/s power to apply some of the funds for the child’s maintenance or education.

Appointment of Enduring Guardian and Enduring Power of Attorney

Your solicitor can also help in the preparation of what’s known as an Enduring Power of Attorney and Enduring Guardian. An enduring attorney has the power to make financial decisions on your behalf if you’ve lost the capacity to look after them yourself. An enduring guardian can make lifestyle decisions such as where you live, what medical treatment you will receive etc. in similar circumstances.

Often there isn’t one particular point in time where you lose your capacity completely. Rather it is a gradual progression. During this time you may simply require some assistance when dealing with large or complex matters, such as the sale of a house and/or moving into a nursing facility. An Enduring Power of Attorney and Guardian can be drafted to enable assistance to be provided when necessary, without handing over total control of your affairs to someone else.

Conclusion

Although preparing a will is an important part of planning your estate, there are many aspects which are not addressed by a will. The fact is that each person’s circumstances are different, whether it be the type of assets they hold, the debts they owe or their family situation, and each person should get proper advice tailored to their individual circumstances. There is absolutely no point in refusing to prepare for the inevitable. It’s your family, not you, who will suffer, and in our experience they suffer far more than the deceased person could ever have imagined.

For competent legal advice and assistance call LAC Lawyers. After all who would wish to allow the substance of their life to be dissipated by needless litigation. The most cost effective and strategic way to overcome this eventuality is to consult LAC Lawyers Sydney and Melbourne.

Contact us now for Fast, Accurate and Timely legal advice

Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email

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