Will and Estate Lawyers For Inheritance Planning in Australia

A Will details wishes for the distribution of your property (your estate) when you die.

A Will generally operates over inheritance planning as per following

  • it appoints your executors;
  • it provides gifts of personal effects or money to certain people;
  • it might detail your funeral instructions;
  • it allows you to appoint guardians for your younger children;
  • it allows you to distribute the rest (or residue) of your estate.

IMPORTANT ISSUES CONCERNING WILLS

  • If you divorce, certain provisions in your Will and, in some cases, the whole Will, will be revoked.
  • Re-marriage will revoke any existing Will you may have previously made;
  • There are strict formalities to be observed in making a valid Will.
  • If these formalities are not strictly complied with, difficulties can arise following your death which can lead to significant delays and a blow-out in the expenses associated with the administration of your Will.

You need expert Will and Estate Lawyers for Inheritance Planning.

WHAT HAPPENS IF YOU DO NOT LEAVE A WILL?

The “Intestacy Rules” set out what will happen in the event that you die without having made a valid Will.

The rules govern the distribution of the estate for several purposes:

  • to ensure that the estate is divided into fixed shares between family members; and
  • to ensure that members of the deceased person’s immediate family receive some benefit by ensuring that they are entitled to a share of the deceased’s estate in preference to remote relatives.

The priorities of those people entitled to the distribution on the death of someone dying without leaving a valid Will are basically as follows:

  • first to your surviving husband/wife and children;
  • if there are no children, the husband/wife will inherit the estate;
  • if there are children and no surviving spouses, the children will be entitled to equal shares of the estate;
  • if any children have died, any living next of kin will be entitled to some portion of the estate; and the government thereafter.

When making a Will it is important to have regard to the following for your Inheritance Planning:

  • is your Will tax effective?
  • do you wish to make a gift to a charity?
  • what will happen to your superannuation death benefit entitlements?
  • are there particular aspects about your family to which special consideration will need to be given?
  • are you certain that your assets will pass to those beneficiaries whom you wish to benefit?
  • is there a family trust and, if so, who will control the family trust upon your death?
  • have you made loans to any beneficiaries or to your children?
  • have you sought advice from your accountant?

Who should you point as your executor?

The following are often appointed as executors in Wills:

  • a spouse;
  • a friend or family member;
  • the Public Guardian of NSW;
  • a lawyer or accountant;
  • a private and professional trustee company.

Your executor may need to:

  • ascertain the nature and extent of your estate and gathering your assets;
  • pay the debts of your estate;
  • make arrangements for funerals;
  • obtain probate;
  • liaise with banks to close accounts etc;
  • make contact with the beneficiaries;
  • carry out estate management duties such as ensuring that all estate assets are fully insured;
  • complete and submit tax returns to the ATO including: last return for the deceased, tax return for the estate, distribute the assets.

WHAT IS A POWER OF ATTORNEY?

An Enduring Power of Attorney makes it possible to choose a person to look after your affairs in the event that you become incapable of managing your affairs yourself.

You should ensure that your attorney is over 18 years of age and is someone you trust and who has the necessary skills and knowledge required to manage your financial, legal and personal affairs on your behalf.

A power of attorney does not deal with medical or lifestyle decisions but only with financial matters.

A power of attorney can come into effect immediately upon the signing of the power of attorney or, alternatively, upon loss of capacity.

You can choose to limit your power of attorney to relate to specific matters or financial or legal affairs or, alternatively, you can choose to make it a general power of attorney.

What are the duties of an attorney appointed under an Enduring Power of Attorney?

An attorney must always:

  • act only in your best interests;
  • have the necessary knowledge and experience required to manage your financial and legal affairs;
  • have the necessary time and inclination to look after your financial and legal affairs;
  • keep detailed accounts of how your money and assets are dealt with.

For more information on inheritance planning, call our Will and Estate Lawyers on (02) 9906 8188.

“Clive Mills Pty Ltd t/as Clive Mills & Associates – Liability limited by a scheme approved under Professional Standards Legislation ABN No. 61 118 894 787”

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