Estate planning health check – is your Will up to date?

Estate planning health check – is your Will up to date?

27 July 2020 Authored by: Hayley Mitchell   |   Topics: Superannuation, Estate planning, Professional advisers

An estate plan is the process of making a Will, enduring power of attorney, superannuation binding nominations and sometimes a suite of other documents that deal with your assets and important decisions to be made on your death or loss of capacity.

It is important to put an estate plan in place and regularly review your existing estate plan to ensure that it still achieves your wishes.

This article sets out some things you should consider for your Will, and the life events that indicate you should review your Will. We will have further ‘health check’ information on estate planning, enduring powers of attorney, superannuation binding nominations in publications to follow.

Is it time to change your Will?

Some examples of circumstances that would require you to review your Will and estate plan are if:

  • your financial circumstances change (you sell or purchase substantial assets)
  • your personal or family circumstances change (marriage, divorce or separation)
  • a beneficiary, executor or trustee dies, changes their name, becomes bankrupt or loses capacity
  • the circumstances of any of your dependents change (which could increase the risk of a challenge to your estate)
  • you transfer assets or begin to hold assets that you cannot gift under your Will (for example, in a trust, superannuation or company structure).

If any of the above circumstances apply to you, then you should review your Will and other estate planning documents. Nothing may need to be changed, but you can at least have peace of mind that your estate plan remains current and up to date.

Marriage, divorce and separation

If, after making your Will and Enduring Power of Attorney, you divorce, marry, end a de facto relationship, enter into or terminate a civil partnership, this may cause your Will or Enduring Power of Attorney to be partially or fully revoked.

Entering into a de facto relationship does not automatically revoke your Will.

If these circumstances apply, then it is important that you take steps to update your Will and other estate planning documents.

Things to consider for your Will and estate plan

Distribution of assets
To whom do you want to leave your assets if you are:
  • survived by your spouse
  • not survived by your spouse but you are survived by children
  • not survived by your spouse or any children or grandchildren?
  • Do you want to make any specific gifts (e.g. jewellery, artwork or family heirloom items)?
    Executors
    The executor’s role is to administer your assets in accordance with your Will. This needs to be someone you trust implicitly. You can appoint up to four executors who will act jointly.
    Guardians
    These are the people who will look after your children who are under 18.
    Superannuation
    Have you made a binding or non-binding death benefit nomination for your superannuation?
    Your superannuation does not automatically form part of your estate, and therefore is not automatically dealt with under the terms of your Will.
    Do you have a self-managed superannuation fund? If so, it will also be important to ensure that your trust deed is up to date, and the rules for binding nominations can be followed properly.
    Do you have life insurance?
    If so, who is the nominated beneficiary of your life insurance policies and who owns the policies?

    What happens if I don’t have a Will?

    If you do not have a Will when you die, then your estate assets will be dealt with under the rules of intestacy.

    These rules are different in each state and territory. If you own assets in states or territories other than the one in which you live, then the intestacy rules from all of those states/territories may apply to the division of your assets. This could unnecessarily complicate and increase the costs of dealing with your assets after death.

    Conclusion

    It is very important for everyone to have an up-to-date estate plan. When did you last review your estate plan?

    To discuss your Will and other estate planning documents, please contact a member of our estate planning team.

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    This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.