It’s time to address your Estate planning
‘Estate Planning’, it’s something that we put off. Perhaps because we don’t feel like we have an ‘estate‘ or perhaps our ‘estate’ is too complex. Some have lodged a will 20 years ago, the majority of us still haven’t ever got around to it.
The truth is, we find it daunting. We think of it as confusing, complicated and expensive. So we put it in the too-hard box.
With the CoronaVirus forcing us into mandatory self-distancing, there has never been a better time to get started. Especially for those of us that are thinking about our own mortality of late. End-of-life care is mandatory to start planning for and the earlier you start thinking about it, the better.
Why is it important to have end-of-life documents in place?
Because you could be leaving an expensive, time-consuming, emotionally draining, legally complex mine-field for your dear loved ones. We’ve seen some of the
Let’s have a look at some of the things you should be considering as part of your end-of-life planning.
Powers of Attorney
In New South Wales a Power of Attorney is known as an Enduring Guardian. This covers the appointment of another person to make personal decisions or financial decisions (or both) on your behalf, in the event you no longer have the capacity to do so.
The appointed person you nominate is known as an “attorney”, and you can choose when their role as your “attorney” is to start. For example, when the document is signed, or when you cease to have decision-making capacity, or on a particular date that you nominate. It’s very important to nominate a Power of Attorney, even if you have full capacity now, as it will allow you to specify in detail the types of decisions you would like another person to make for you in the event of unforeseen circumstances. Note you can appoint different Attorneys for financial and personal matters – you know your contacts, some are going to be great at the financial stuff, but possibly they are not going to know enough about your personal needs in relation to health and personal care!
Advance Health Directive
In contrast to the Power of Attorney / Enduring Guardian, there are Advance Care Directives. The requirements do vary from state to state in Australia, but essentially it is about your future health care. It should ideally be a constantly changing document that outlines what you would want or not want in the event that you were unable to make or communicate your own preferences in relation to your health care.
For example, if you had a type of cancer, at what point would you want to discontinue treatment? At what point is the quality of life compromised for you? When on a life support machine, when would you want a DNR (Do Not Resuscitate) to be put in place?
The Advance Care Directive would not appoint someone to make decisions for you, it would merely state your wishes or direction for any health care you might receive for various conditions in the future.
For more information about the various state laws surrounding Advance Care Directives in your area, you will find forms, supporting information, guides, fact sheets and checklists.
Keeping an effective Will that reflects your true wishes is such an important duty you owe to those important to you. Not only will it ensure your loved ones are appropriately provided for, but it will avoid any disputes arising in the event that you pass away.
As your life is constantly evolving, a will should be reviewed every 2-3 years to ensure that it reflects your intention – your wishes and your inclusions (any assets which may have changed over the time period). It’s generally best to have an entirely new document prepared.
An executor will need to be appointed. An executor will be the person that you nominate who deals with your estate or assets and will administer your Will. You can nominate a professional executor (such as your accountant or your lawyer), or a close friend or family member. It just comes down to selecting someone you can trust and will take the task at hand in a mature and methodical fashion. If you elect to have a professional person administer your estate, you’ll need to include a clause to make payment to this executor at the time of administration.
Does your will consider things like:-
- What happens if you remarry?
- Do you have allocations for step-children?
- What happens if your children marry?
- Have you appointed a guardian for your children if they are under 18 years old?
- Allocation of specific gifts of property, shares or cash
- Do you want to divide your estate equally or in unequal shares?
- Have you made your funeral wishes clear?
- Do you need to create a trust to protect your childs inheritance until they turn 18 or 25?
For couples, a ‘Mirror Will’ maybe something to consider. If you are married or in a defacto relationship, a will can essentially be mirrored if they say the same thing. For example, if they leave everything to each other and then upon the death of both, the estate needs to pass to their children (if they have any).
Such a trust is formed to provide a greater level of control over the distribution of assets to your beneficiaries. It begins after the Will maker dies, with certain provisions of the Will operating as the trust deed. A key benefit of holding assets on trust is it attracts a lower tax rate (depending on the circumstances).
There are two main types of testamentary trusts commonly used:
Where the executor gives the beneficiary the option to take their inheritance (or part of the inheritance) via a testamentary trust.
Where the beneficiary must take their inheritance via the trust, and doesn’t have the option to appoint or remove trustees (unlike in a discretionary testamentary trust). This type is better in situations where the beneficiary may be too young, or not capable of making informed decisions!
Death Benefit Agreements and Death Benefit Nominations
Superannuation Funds are not factored into your ‘estate’ when you pass away. So it is very important that you check your super documentation and make sure that you have nominated your beneficiaries.
If there is no Agreement or Nomination in place, the surviving trustees are able to distribute the monies at their discretion. This may not be what you had intended, as they may simply distribute it to themselves!
You should update the Agreements and Nominations regularly. In fact, in some cases a binding Death Benefit Nomination may actually expire after 3 years if it is not confirmed.
A Death Benefit Nomination can be either binding or non-binding on the trustees who need to allocate the relevant amounts to be paid on your death. It will also expire after 3 years (unless you confirm it); a Death Benefit Agreement, however, is binding and remains permanent until a member revokes or replaces the agreement.
OK, I’m convinced, what do I do?
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