Estate planning

If you do not have a Will, then on your death the rules of intestacy may apply.  This may mean that your assets are not left to people as you wish.

For example, if you are survived by a spouse and children, then the rules of intestacy provide that the spouse will receive $150,000 plus household chattels and then 1/3 of the rest of the estate.  The remaining 2/3 of the rest of the estate will be distributed equally between the deceased’s children.

It is important to understand that a ‘spouse’ may not just be someone you are married to or someone you have lived with for a specific period of time.

Not all assets form part of the estate. Any property owned as joint tenants will automatically pass to the survivor. This may include real property, joint bank accounts, and joint shares.

Superannuation may also fall outside the estate.  If the deceased has made a valid binding nomination, then the superannuation fund will pay the superannuation to the person nominated and bypass the estate.

Similarly to superannuation, if the deceased had nominated a beneficiary of any life insurance policy, then any payment would be made directly to the nominated beneficiary and not form part of the estate.

If property is owned as joint tenants then when one joint owner dies, the survivor/s will be the legal owner/s of the whole of the property. This means that the property will not fall into the deceased’s estate.

If property is owned as tenants in common, then on the death of one co-owner their share of the property will become part of their estate and be distributed in accordance with their Will.

You must have two witnesses, both over the age of 18 years.

A witness must not be a person who is left anything in your Will (a beneficiary) and ideally should not be related to a beneficiary. Nor should they be your executor (or the husband or wife of your executor).

Yes, you can nominate your solicitor or accountant as executor under your Will.  Generally, a professional adviser will require a clause to be inserted into your Will to enable them to be paid their fee from the estate.

You do not need to appoint a professional. The role of executor does not require professional skills. The most important skills are common sense and the ability to make a decision. Your executor needs to be able to recognise when to get professional advice and help.

An Executor’s Dossier is a document that will help your executor and save time and money in administering your estate.

Read more about Executor’s dossiers.

If you believe your estate has a high risk of a challenge, you should seek expert legal advice as soon as possible, particularly if you live or own assets in New South Wales.

Depending on the level of risk, it might be advantageous to restructure your assets so that fewer assets will form part of your estate when you die. In some circumstances, this can reduce the prospects of a challenge being successful and even prevent a challenge.

If you plan to leave only a small or no gift to someone who can challenge your estate, it is important to prepare additional documentation as part of your estate planning. These documents can be very helpful in defending any claim that is brought. Unfortunately, they can also be damaging, so it is important that they are prepared correctly.

You should also carefully consider your choice of executor. If a dispute arises, your executor will play a very important role in managing and dealing with it, including representing your estate in court proceedings if that becomes necessary. Particularly, you should avoid appointing an executor who you think might challenge your Will, as this will place them in a position of conflict and potentially increase the costs of what is an already expensive process. If you believe your estate has a high risk of a challenge, you should seek expert legal advice as soon as possible, particularly if you live or own assets in New South Wales.

Depending on the level of risk, it might be advantageous to restructure your assets so that fewer assets will form part of your estate when you die. In some circumstances, this can reduce the prospects of a challenge being successful and even prevent a challenge.

If you plan to leave only a small or no gift to someone who can challenge your estate, it is important to prepare additional documentation as part of your estate planning. These documents can be very helpful in defending any claim that is brought. Unfortunately, they can also be damaging, so it is important that they are prepared correctly.

You should also carefully consider your choice of executor. If a dispute arises, your executor will play a very important role in managing and dealing with it, including representing your estate in court proceedings if that becomes necessary. Particularly, you should avoid appointing an executor who you think might challenge your Will, as this will place them in a position of conflict and potentially increase the costs of what is an already expensive process.

An Enduring Power of Attorney is a legal document that allows someone to make decisions on your behalf particularly in the circumstances where you are incapacitated, as it continues even if you lose capacity to make decisions.

Read more about Enduring Powers of Attorney – appointing an attorney.

An Advance Health Directive allows you to document your wishes or directions regarding your future health care for various medical conditions.

The document only comes into effect when you lose capacity, that is, when you are not capable of making your own decisions.