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It is up to you to decide who shall benefit from your assets, at what time and under what terms.

Ideally, estate planning should aim to ensure that your assets pass to your chosen beneficiaries in exactly the way that you intend while legitimately minimising tax for those beneficiaries, and without leaving a legacy of family disputes.

Having no estate plan or having the wrong estate plan may detrimentally affect your family and your assets, and may result in a distribution of your wealth in a manner contrary to your wishes.

Your protection during mental incapacity

 

An Enduring Power of Attorney enables you to appoint a person or persons who look after your financial matters if and when you lack mental capacity.

An Appointment of Enduring Guardian enables you to appoint a person or persons who look after your non-financial matters (for example, which medical treatment you should receive) when you are no longer able to do so.

A Declaration of Life (sometimes also called “living will” or “wishes of medical treatment”) enables you to give guidance to your guardian in which circumstances you wish life support to be turned off or whether you wish life support to be kept on.

A Deed of Conditional Appointment of Appointor/Trustee enables you to appoint a person or persons who control assets held in your family trust and/or self-managed superannuation fund if you are no longer able to do so due to lack of mental capacity or upon your death.

Making or not making a Will

You die without a valid Will

 

The law of intestacy applies where a person dies without a Will or leaves a valid Will that does not cover the whole of their estate. Recent changes to intestacy law in NSW make it even more pressing to put a proper Will into place.

You and/or your beneficiaries have no need for asset protection, tax flexibility or special provisions for the distribution of your estate - Simple Will

 

If neither you nor any of your beneficiaries are in need of asset protection, tax flexibility or special provisions for the distribution of the estate, a Simple Will may be sufficient. A Simple Will generally deals with the appointment of an executor who is responsible for the administration of your estate and the distribution of the estate to beneficiaries. The Will should provide alternatives to accommodate the unknown fact of who may survive whom and be written in a way that ensures all of the estate’s assets are covered. If this is not the position, the rules of intestacy would apply to assets which are not covered by the provisions under the Will.

Your beneficiaries have a need for asset protection, tax flexibility and and/or special provisions for the distribution of your estate - Testamentary Trust

 

The establishment of one or more Testamentary Trusts under your Will enables you to provide possible financial advantages (including tax advantages), flexibility and asset protection for your beneficiaries. The terms of your testamentary trust may be as fixed or as flexible as you wish.

Your beneficiaries require sufficient cash funds

 

Life insurance enables you to provide cash funds for your spouse and children. If you hold a policy on your life, the policy forms part of your estate.

Superannuation death benefits may be paid into your estate if valid binding or non-lapsing binding nominations are put into place and provide cash funds to your family members. You should know that your superannuation does not automatically form part of your estate.

You are a member of a blended family

 

Joint Tenancy - property held in joint tenancy passes automatically to the surviving joint tenant by right of survivorship. The Will of the surviving joint tenant then decides as who receives the property after all joint tenants have passed away. The Wills of predeceased joint tenants are irrelevant.

Tenants-in-common - If property is purchased as tenants-in-common, your share in the asset would form part of your estate and your Will could articulate who is to receive your share.

A Mutual Wills Agreement enables you and your spouse to limit the testamentary freedom of each other. Under the agreement, you and your spouse give mutual promises that you will uphold your “mirror” Wills as well as to maintain your wealth and assets for the benefit of all of your and your spouse’s children.

One of your beneficiaries has a severe disability

 

Special Disability Trusts enable you to give financial support for the future care of children and grandchildren with severe disabilities. You can make provisions for a special disability trust in your Will.

You run a business

 

Buy/Sell Agreement - A Buy/Sell Agreement enables you and your business partner(s) to determine your exit from the business in the event of death or serious injury (total and permanent disability).

A Shareholders’ Agreement is a contract between some or all of the shareholders of your company, detailing the rights of the shareholders and the way these rights are exercised.

Your Will might be challenged

 

An eligible person as defined under the law whose financial needs you have not adequately provided for under your Will may successfully challenge your Will.

A properly drafted Will may avoid any successful claim by an eligible person.

A Deed of Release, the terms of which have been approved by the court, enable eligible persons to release their rights to make a claim against an estate.

You are planning to get married or have recently married

 

Marriage revokes your Will. Therefore, you should reinstate or amend your current Will so it expresses your wishes and nominates the “right” beneficiaries.

You have recently separated

 

It is important to understand that your estranged spouse is still your main beneficiary if no Will has been put into place and the law of intestacy applies.

In many cases, there will be a Will in place under which one spouse has nominated the other as sole beneficiary. There might also be other documents in place that give your estranged spouse control over your assets or your life (for example an Enduring Power of Attorney or Appointment of Enduring Guardian), which should be amended if you no longer wish your estranged spouse to have such powers.

You have recently been divorced

 

A divorce revokes provisions under a Will in favour of your former spouse (whether as a beneficiary or executor). This might mean that your Will may no longer deal with the whole of your estate and the law of intestacy may determine the distribution of the remainder of your estate.

A divorce does not automatically revoke an Enduring Power of Attorney or Appointment of Enduring Guardian. These documents must be expressly revoked.