All of us want to make sure that when we’re gone, our assets and everything we’ve worked for ends up with the people we care about, with minimal financial or emotional cost. But it often doesn’t work out that way. Poor estate planning can end in disputes that whittle away your estate in legal costs.
All of us want to make sure that when we’re gone, our assets and everything we’ve worked for ends up with the people we care about, with minimal financial or emotional cost.
But it often doesn’t work out that way. Poor estate planning can end in disputes that whittle away your estate in legal costs.
The good news is these traps can be avoided. Here’s six tips to consider:
1. Ensure you have a valid and up to date Will.
The Wills Act (SA) specifies the formalities required to have a valid Will. However, Wills that might appear to be invalid because they do not meet the formalities of the Wills Act can still be admitted to probate (e.g. a document signed only by the testator), but the costs and delays to do so can be substantial. Therefore having a properly prepared, signed and witnessed Will will save your estate further expense and delays.
Commonly superannuation will not be an asset given away through your Will. In most instances, the trustee of the superannuation fund determines who the beneficiary of your super will be in accordance with the superannuation legislation, and they only have to consider your non-binding nomination. As part of your estate planning we recommend that you consider making a Binding Death Benefit Nomination (if your super fund allows). Nominations can be one or more of your dependents or alternatively to your estate and therefore distributed in accordance with you Will.
Again, getting advice regarding what happens to superannuation when you die is very important because in many instances this can be one of your largest assets particularly where a life insurance benefit is also included.
3. Potential Claims.
In South Australia the Inheritance (Family Provision) Act (SA) provides a list of potential claimants to your estate. Legislation differs in each State and this may be relevant to you if you own assets outside of South Australia. If a claim is made after your death it is possible that a large part of your estate will be used to pay the legal fees of the parties to the claim. Considering these potential claimants as part of your estate planning is very important.
4. Powers of Attorney.
As part of your estate planning you should consider appointing an attorney or attorneys who will be authorised to act on your behalf if you become incapacitated and can no longer act for yourself. There are a number of options with respect to how attorneys are appointed and from when they commence. An attorney could also be appointed if you are away for a long period of time e.g. a long overseas holiday or you work away from home. Again this should be discussed with your estate planning advisor. Without a Power of Attorney if you were to become incapacitated your family members would need to apply to the Guardianship Board to be appointed to look after your financial affairs.
5. Advance Care Directives.
An Advance Care Directive allows you to appoint somebody to make decisions regarding your health decisions, lifestyle decisions, and personal decisions, if you are no longer able to make those decisions yourself. The Advance Care Directive is a new document and now replaces the Enduring Guardian, Medical Power of Attorney and Anticipatory Direction. These documents are still valid if they were completed prior to 1 July 2014. An Advance Care Directive can be prepared by downloading a copy of the kit here.
6. Leave Behind Information.
Don’t forget to tell your executor/s they are appointed and where your Will is located. Leave behind a simple list of your assets and liabilities including real estate (addresses and where the titles are located), bank accounts (especially online only accounts), investments, superannuation, your insurance policies and information about whether you have a prepaid funeral and the name and contact details of your lawyer, accountant and financial adviser.
Of course there are many other considerations that will be specific to you, so seek the advice of an experienced estate planning lawyer.
To arrange an appointment with Rosemary contact TGB’s Adelaide or Salisbury offices. If you don’t have a Will, you can get started here.
On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.