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Estate Planning

Below is a summary of the some questions which we consider with our clients as part of their estate planning:

Do you have an Australian Will? 

  • If you live in Australia and/or have assets in Australia, then you should have an Australian Will.
  • Is your Will in safe custody with a solicitor?
  • Do your executors, beneficiaries, family and close friends know where your Will is located?

Is your Will valid?

  • Have you married or divorced since making your Will? If so, the whole or part of your Will may be void.
  • Was your Will drafted by an experienced estate planning solicitor? If not, we are happy to review it for you.
  • Was your Will properly executed in the presence of two independent adult witnesses (preferably one of whom was a solicitor)?

Is your Will up-to-date?

  • Does your Will reflect your current wishes regarding the division of your assets?
  • Have you had any children since making your Will?
  • Have you commenced or ended a relationship since making your Will?
  • Does your Will properly deal with all of your estate assets? Does your Will include substitute beneficiaries in case your first named beneficiaries do not survive you?
  • Have you established a company, family trust or SMSF since making your Will?
  • Are your choice of executors and substitute executors still appropriate? Do you trust your executors (without reservation) to carry out your wishes?
  • Are your choice of guardians for your children and substitute guardians still appropriate?

Do you have assets in another country? (eg. property, bank accounts, shares or a pension fund)

  • If so, you may need a separate Will in that Country.
  • Your Australian Will and overseas Will both need to include special clauses to enable you to have two Wills which ‘work together’.
  • You may also need advice regarding the potential application of overseas inheritance/estate taxes. Where such taxes apply, they can impact your overseas assets as well as your Australian assets.

Are you a citizen of another country?

  • If so, you may need advice regarding the possible application of overseas inheritance/estate taxes. Where such taxes apply, they can impact your overseas assets as well as your Australian assets.

Have you received advice from an estate planning solicitor about the treatment of your non-estate assets in the event of your death?

  • Your Will only deals with those assets which form part of your estate (known as your ‘estate assets’).
  • Often a large part of your wealth will not be governed by the terms of your Will and must be separately considered. Non-estate assets may include:
    • Jointly-owned assets (eg. joint tenant property, joint bank accounts)
    • Superannuation
    • Life insurance
    • Trusts (including SMSF)
    • Assets owned by proprietary companies

Does your Will include the ability for your beneficiaries to receive their inheritance in testamentary trusts?

  • There are significant potential tax advantages and asset protection benefits in including the ability for your beneficiaries to receive their inheritance in a testamentary trust under your Will.
  • If you have not discussed the benefits of a testamentary trust with an estate planning solicitor, then we recommend you do so.
  • We are happy to discuss the benefits of testamentary trusts with you and consider their suitability to your circumstances.

Do you have a valid binding death benefit nomination governing any superannuation you hold?

  • Did you know that unless you have a valid binding death benefit nomination (‘BDBN’) in place, the trustee of your superannuation fund has discretion as to where to pay your superannuation death benefits when you die?
  • Is your BDBN current? Please note that many BDBNs expire after 3 years.
  • Is your BDBN “binding” on your super fund? Did you sign it in the presence of two independent adult witnesses? If not, it won’t be binding on the trustee of your superannuation fund.
  • Did you receive advice from an estate planning solicitor regarding your BDBN? If not, we recommend that you discuss your BDBN with your solicitor as part of your overall estate plan.

Have you obtained advice regarding the potential application of family provision laws?

  • It is important that you discuss the potential application of family provision laws with an estate planning solicitor.
  • Are there any further documents or steps which should be taken by you to protect your estate from legal challenge or minimise the risk of challenge?

Do you have an estate plan which sets out all of your assets?

  • A detailed estate plan which accurately lists all of your assets (eg. properties, bank accounts and shares) will ensure that your executors are able to easily locate your assets and administer your estate in accordance with the terms of your Will.

Have you made an enduring power of attorney?

  • Was it made in NSW?
  • Is it up-to-date?
  • Was it prepared by an experienced estate planning solicitor?
  • Is it in safe custody with a solicitor?
  • Do your attorneys, family and close friends know that you have made this document and know where the original is located?
  • It is important to formally revoke any old powers of attorney. It is also important to check whether the revoked POA was registered with Land & Property Information (‘LPI’). If so, the revocation should be registered with the LPI.

Have you made an appointment of an enduring guardian?

  • Was it made in NSW?
  • Is it up-to-date?
  • Was it prepared by an experienced estate planning solicitor?
  • Is it in safe custody with a solicitor?
  • Do your enduring guardians, family and close friends know that you have made this document and where the original is located?

Please contact us if you would like to discuss your estate planning.