Services
Estate Planning
Estate Planning is essential to ensure your personal and financial assets are distributed as intended. The following information provides a brief outline of some issues. We recommend you consider further with a solicitor experienced in estate planning matters.
While we can recommend and assist you with nominating beneficiaries in your superannuation fund (including your estate), we recommend you seek professional advice to ensure your Will and estate planning requirements are set up properly.
52% of Australian adults do not have a Will…are you one of them?
If you are uncertain whether your beneficiary nomination is set up correctly in your super fund, please contact us for a review.
Valid Will
Your estate is the accumulation of your assets to be distributed after death. A current, valid Will instructs how you wish your estate to be managed including appointing guardianship of children if necessary. It is vital to nominate an Executor you trust and consider capable of administering your estate as per your directions.
Failing to have a current, valid Will is referred to as Dying Intestate, wholly or partially. In this instance, relevant Government legislation will determine the distribution of your estate. An administrator will be appointed (for example, a family member or Government Trustee) and your assets may not be managed or distributed as intended.
Enduring Power Of Attorney
An Enduring Power of Attorney is a legal document allowing you to appoint an individual, individuals or a Trustee company to take care of your financial affairs if you lose capacity or feel unable to cope with the responsibility.
Enduring Powers of Attorney deal only with the management of your financial affairs; not lifestyle or medical decisions (this requires the appointment of a guardian).
You can activate your Enduring Power of Attorney whenever you decide you would like assistance in managing your financial affairs. Alternatively, if you are unable to manage your financial affairs (due to illness or injury); your Enduring Power of Attorney can be activated for you.
Until your Enduring Power of Attorney is activated you will have full and independent control of your affairs.
Death Benefit Nomination – Superannuation
A Binding Death Benefit Nomination provides certainty that your superannuation benefit will be transferred in accordance with your wishes. If you have planned your estate to achieve particular outcomes, a binding nomination can ensure your superannuation benefits flow to your estate or particular beneficiaries as the trustee is bound to follow your nomination.
Important – your nomination must be a valid nomination as permitted by law.
You can also have a Non-Binding Death Benefit Nomination where the Trustee will consider your nominated beneficiaries, but is not legally bound to follow the nomination in the event of your death. The Trustee will consider your nominated beneficiaries along with any other dependants as permitted by law, and whether or not your personal circumstances had changed since providing your nomination.
Executor
Notify the beneficiaries – When a person dies, the executor locates the Will and contacts the beneficiaries and any relevant business associates.
Look after the estate – It is important the executor ensures that all assets including property and investments are safe and arrange insurance protection when needed. The immediate needs of the beneficiaries must also be assessed to ensure that they do not suffer any unnecessary financial hardship.
Value the estate – The executor must identify and account for all assets and liabilities. Each item requires written confirmation from banks, financial institutions, insurance companies, share registers, titles office and creditors etc. The value of assets must be ascertained, often by obtaining valuations from licenced valuers or estimates from recognised sources.
Obtain authority to administer the estate – Before an estate can be administered, the executor must apply to the Supreme Court for the authority to deal with the deceased’s estate. This is referred to as obtaining ‘probate of the Will’.
Complete income tax returns – Before an estate can be distributed, it is necessary to obtain a clearance from the Australian Taxation Office. This means the executor will have to give details of all income earned during the current financial year and past years, if the deceased failed to lodge a return. In many cases, the calculation of capital gains tax is involved.
Pay all debts – Creditors, funeral expenses, income tax, fees for administering the estate and out-of-pocket expenses must all be paid. This often requires the executor to sell some assets. Beneficiaries may choose to provide funds to cover these expenses so as to keep the assets of the estate intact.
Divide the estate – When all debts have been paid, the executor is able to distribute the remaining assets according to the directions laid out in the Will. If there is no Will, then assets will be distributed as per State Government legislation.
Establish trusts – Executors are responsible for setting up trusts for beneficiaries. Trusts are required if the beneficiary is under 18 years of age or mentally incapable, or if there are specific instructions in the Will. Such trusts need ongoing administration, often over many years.