What is “testamentary capacity”? The legal test for assessing testamentary capacity was outlined almost 150 years ago in a case called Banks v Goodfellow (1870) LR QB 549. The test has four (4) aspects to it, namely: 1. That the willmaker understands the nature of the act of making a Will and its effects, 2. […]
Take care of the basics and keep them up-to-date as your circumstances change.
One of the most difficult tasks that Estate Lawyers have is explaining to family members why what needs to be done for a loved one simply can’t be done (or done that easily), because the person did not have their Estate Planning basics sorted out or up-to-date.
Estate Planning is very important for both you and your family. Don’t get caught out or cause your loved ones unnecessary stress and grief by putting off these important matters until it’s too late.
Speak to one of our Estate Lawyers today about getting your Estate Planning basics sorted.
Estate Planning Basics
Modern Estate Planning involves planning for the protection of wealth for the benefit of you and your loved ones as well as planning for the succession of that wealth to your intended beneficiaries in the most advantageous manner.
There are many issues that might be relevant to the persons Estate Planning, however, everyone should have the following important basics in place and kept up-to-date:
- Wills creating Testamentary Trust,
- Enduring Power of Attorney,
- Appointment of Enduring Guardian, and
- Personal Insurances (subject to financial advice).
A Will is a legal document in which you state how you want your Estate Assets to be distributed after your death. A Will also allows you to choose an Executor who will be responsible for making sure that your wishes are met and can also be used to appoint a Guardian to look after minor children until they can look after themselves.
Apart from these obvious advantages, a Will can avoid the expense and disputes that often occur when a person dies without a Will. Everyone should have a Will. A Will is the only way that you can tell others how you want your assets to be distributed after your death.
Wills can only be made when you have testamentary capacity. Therefore, now is the time to make or update your Will. Unfortunately, you never know what might happen in the future and everyone has a story about someone they know who has suffered an unexpected trauma or death.
Significantly, if you or someone you know has made a Will using the Public Trustee, the Public Trustee will be appointed as your Executor and will retain a percentage of your Estate Assets as a commission.
Your Will is one of the most important documents you will ever sign, and should, therefore, be prepared by a Solicitor experienced in Estate Planning issues and after having considered all you and your beneficiaries’ circumstances and liaising with your Financial Planner and Accountant where necessary.
Wills creating Testamentary Trust
It is impossible to accurately foresee your beneficiaries’ circumstances at your date of death. A standard Will gifts your assets to your beneficiaries absolutely, leaving your estate assets available to:
1. Creditors in the event of your beneficiary’s bankruptcy, or
2. The spouse or de facto partner of your beneficiary in the event of a relationship breakdown.
A Testamentary Trust is a Trust created by a valid Will and funded by the Estate Assets. The Trust commences when the Executor finishes administering the Estate.
Wills creating Testamentary Trusts allow your Executor(s) flexibility to determine how to distribute estate assets to offer the most effective asset protection and tax minimisation.
Enduring Powers of Attorney
A Power of Attorney is a document pursuant to which you appoint a person(s) to manage your financial affairs, usually in circumstances where you are unable to manage your affairs yourself (for example, due to illness, unsoundness of mind or time overseas).
An Enduring Power of Attorney is a Power of Attorney that only commences or continues to operate after you are unable to make decisions for yourself.
An attorney must always act in the best interests of the principal. Unless the attorney is expressly authorised, the attorney cannot gain a benefit from being an attorney.
Appointment of Enduring Guardian
An Appointment of Enduring Guardian is a document pursuant to which you appoint a person(s) to make health and lifestyle decisions on your behalf when/if you are no longer able to make those decisions yourself due to illness or unsoundness of mind.
Unless the guardian’s authority is restricted, a guardian may:
- decide where you live,
- to decide what health care you receive,
- consent to the carrying out of prescribed medical or dental treatments on you, and
- decide what other kinds of personal services you receive.
Personal Insurances are insurance policies that provide:
- A source of replacement income should you become injured or ill and unable to work, and/or
- A lump sum payment in the event of a severe trauma, total permanent disablement or death.
It is crucial to speak to a Financial Planner in relation to the role and importance of personal insurances and to review your policies periodically and/or as your circumstances change.
With our Fixed Fee Estate Planning Basics packages we’ve got you covered.
Advanced Estate Planning
Often there are simple solutions to complex Estate Planning problems that go unaddressed.
Find out what Estate Planning solutions are relevant to you and your family.
The purpose of our Guide is to provide a brief overview of the considerations and solutions relevant to our Advanced Estate Planning service.