EVERYDAY LAW FOR EVERYDAY PEOPLE
Estate Planning
We can assist you with a tailor-made estate plan to give you peace of mind and help ensure that you leave an organised estate for your family.
Estate planning is important to ensure that your assets are distributed according to your wishes, and to minimise the amount of taxes and other expenses that your estate may incur. Without an estate plan, your assets may be distributed according to the laws of intestacy in the state in which you reside, which may not be consistent with your wishes.
Wills
Having a valid and up-to-date Will is essential in order to ensure that your wishes are respected and your assets are allocated according to your wishes. If you don’t have a Will, your loved ones may have to go through a lengthy and costly process to obtain access to your assets. In addition to ensuring that your wishes are respected, having a will can also help avoid conflicts among your family members.
As trained legal professionals, we will customise your legally binding Will and tailor-made estate plan unique to your situation.
Power of Attorney
A Power of Attorney is an important legal document that appoints someone to act on your behalf in making decisions or performing certain acts in relation to your finances, assets and other legal matters. Your Attorney will have the power to make decisions and take actions that are legally binding as if they were done by you. This includes signing documents, making financial decisions, even buying or selling property depending on the scope of power they have been granted.
Enduring Guardian
An Enduring Guardian is a legally appointed person who is authorised to make decisions about the medical, health and/or lifestyle matters of another person if the person lacks the capacity to make these decisions for themselves.
This could be due to a temporary or permanent loss of decision-making ability from illness, injury or disability – this can happen at any time in a persons life.
In Australia, the appointment of an Enduring Guardian is regulated by state and territory legislation. The appointment continues for as long as it is needed unless:
- It is revoked or cancelled it while the appointer has the mental capacity to do so.
- The Enduring Guardian resigns from the role, dies or is unable to carry out the role.
- The appointment is changed or revoked by the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court.
We can assist you in the appointment, revocation or other management of your Enduring Guardian(s).
ESTATE PLANNING
Some Considerations When Estate Planning
- Make a Will: Make a Will to ensure that your wishes are carried out after you pass away.
- Decide Who Will Receive Your Assets: Decide who will receive your assets and how they will be distributed.
- Appoint an Executor: Appoint an Executor to manage your estate after you pass away.
- Appoint a Power of Attorney: Appoint an Attorney to manage your finances and make decisions on your behalf for convenience now or to safeguard the future if you suffer a loss of capacity.
- Appoint an Enduring Guardian: Appoint an Enduring Guardian to make health and lifestyle decisions on your behalf in the event that you suffer a loss of capacity in the future.
- Review Your Insurance Policies: Review your insurance policies to make sure you have enough coverage to cover any liabilities in your estate.
- Review your Superannuation Binding Death Nomination: Review the binding Death Nomination for your Superannuation from time to time to ensure that the trustee of the superfund follows your wishes when you pass away.
- Create Trusts: In certain situations it may be worthwhile to create a testamentary trust to protect the estate assets from creditors and/or taxation.
- Set Up Taxation Strategies: In conjunction with your Accountant, set up taxation strategies to reduce the amount of tax payable on your estate.
- Seek Professional Advice: Seek professional legal and financial advice to ensure that your estate plan meets your wishes and objectives.
Learn more ABOUT ESTATE PLANNING
Frequently Asked Questions
Where a person dies without a Will, this is referred to as an ‘intestacy’ or dying ‘intestate’. In NSW the Succession Act 2006 sets out the rules of intestacy which is a hierarchy of who inherits the estate. Dying without a Will can mean that a person that you did not intend may inherit your assets.
Where two or more people acquire property together they must state whether their interest is held as Joint Tenants or Tenants in Common.
Where parties hold title as Joint Tenants they all have equal ownership and interest in the property. Where one of the Joint Tenants dies, the property automatically passes to the surviving Joint Tenant. This is known as the right of survivorship.
Tenants in Common each hold a separate and distinct interest in the property which can be equal or unequal. Where a Tenant in Common dies, their share in the property will pass to their beneficiary.
Generally, superannuation does not form part of your estate unless you make a Binding Death Nomination to your ‘Legal Personal Representative’.
Typically, a Binding Death Nomination is made with your superannuation fund instructing the trustee to distribute your money directly to your beneficiaries, therefore leaving it outside of your estate.
Binding Death Nominations must usually be renewed every three years otherwise it will lapse and no longer be binding. It is important to note that where a Death Nomination is not binding, the trustee of the superfund has discretion as to who receives your money.
A DIY Will is any Will that has not been prepared by a Lawyer. This could include a Kit-Will that you obtain from the Post Office or a handwritten or typed Will that you’ve prepared yourself.
In NSW, for a Will to be valid it must be signed and witnessed strictly in accordance with the requirements of the Succession Act 2006.
In addition to issues with the Will’s validity, when you have a DIY Will you risk making mistakes in the wording, not dealing with your assets appropriately and potentially questions that may be raised about your testamentary capacity.
Your Will is one of the most important documents you will ever sign so, whilst a DIY Will can be valid if prepared correctly, it’s wise to have it prepared by a professional.
It is a good idea to have a Power of Attorney in place in case something happens to you and you suffer from temporary or permanent loss of capacity.
This could happen at any time because of illness, injury or disability.
If you do not have a Power of Attorney in place, a court or tribunal may appoint someone to manage your finances.
Enduring Power of Attorney: A legal document that allows you to appoint a person(s) to manage financial and legal decisions on your behalf and continues even if you lose the ability to make decisions yourself.
General Power of Attorney: A legal document that allows you to appoint a person(s) to manage financial and legal decisions on your behalf, only while you have the ability to make your own decisions.
You can use a Power of Attorney for almost any financial purpose including:
- signing legally binding documents
- operating bank accounts
- paying bills
- buying and selling real estate
- managing investments
- collecting rent.
An Enduring Guardian is the person you legally appoint to make decisions about your health and lifestyle in the event you cannot make these decisions for yourself.
There may be a time in your life when you need someone to make important decisions for you. This could be due to a temporary or permanent loss of decision-making ability from illness, injury or disability – this can happen at any time in your life.
Your Enduring Guardian only makes decisions in the areas you outline, these might include:
- where you live and the services you might receive
- healthcare, medical and dental treatment you receive.
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