HAS YOUR TIME COME... TO MAKE A WILL?

Recent media reports of litigation associated with Wills and deceased estates provide timely warnings of problems we should all avoid. It’s too late to fix your Will after you are dead!

We all put off having our Will prepared or updated, because we all avoid thinking about death.  On the other hand, those you leave behind will not thank you if you leave a mess for them to untangle.

One couple updated their Wills recently, and were embarrassed to admit that it was 42 years since they had prepared their Wills. When asked why they had waited so long to update their Wills, the answer was “we were busy”!!!

Don’t put off tidying your affairs until illness or an unexpected trip prompts you into action.

Some questions to get you started:

• do you have a Will?
• does your existing Will reflect your current circumstances?
• have you arranged Powers of Attorney to appoint others to make decisions for you for financial and medical matters?

Russell Kennedy’s Estate Planning Services

At Russell Kennedy, we recognise the importance to our clients of matters affecting their personal affairs. We have a long tradition of assisting clients with their Wills and Powers of Attorney, whether simple or complex.

Working with clients’ financial and taxation advisors as required, we provide sound and practical legal advice in private estate and trust law, property matters and succession planning in both the family and business contexts.

In assisting clients with their estate planning, our focus is on the protection of family assets and incomes. We can assist clients with the formation or administration of companies, trusts and superannuation funds. We specialise in the preparation of succession documentation including Wills, superannuation death benefit nominations and trust succession deeds, including those with complex financial arrangements.

We also specialise in matters associated with deceased estates, including contested and uncontested probate applications. We administer deceased estates with due regard to all circumstances, especially taxation complexities.

Below are some questions and suggestions that you should consider:

WILLS

1.       Do you need a Will?

If you die without a valid Will, legislation determines who benefits from your estate, with your closest relatives standing at the front of the queue! Even if you have only limited assets, only by a valid Will can you specify who will receive those assets after your death.

2.       Who do I appoint as an executor?

The job of an executor can be onerous; many people underestimate just what is involved. It is important that you choose your executor(s) and substitute executor(s) carefully and that you check that they are willing to take on the responsibility.

3.       Specific gifts

Do you wish your Will to specify who is to receive your jewellery, family heirlooms or other assets?

4.       Children

If you have young children:

• who do you wish to be the guardian of your children while they are under 18 years? The guardian of your children will be responsible for the day to day care and decision making regarding your children.
• you may wish to consider special provisions setting out your wishes for your children’s education, accommodation, religion; and contact with other family members.
• do you wish the guardian of your children to receive financial assistance or personal reward for taking on this responsibility?

5.       Residuary estate

Your “residuary estate” is the balance of your estate remaining after any gifts of specific assets have been implemented and your debts, funeral expenses and costs of administering your estate have been paid.

How do you want your residuary estate distributed:

• if you do not have a spouse, partner or children?
• if your spouse or partner survives you?
• if your spouse or partner fails to survive you, but your children survive you?
• if none of your spouse, partner and children survives you?
• if you have young children, at what age do you wish them to receive or control their inheritance

6.       Potential Challenges to your Will

Who (if anyone) might challenge your Will? Russell Kennedy can advise you regarding minimising the risk of challenges to your Will.

7.       Superannuation

Superannuation entitlements do not necessarily form part of your estate. This is because the rules of the Superannuation Fund dictate who receives your entitlements after your death. Commonwealth legislation limits the categories of persons who can receive your superannuation entitlements. Russell Kennedy can provide further information and guidance on these issues, including taxation.

POWERS OF ATTORNEY

1.       Powers of Attorney for financial matters

A power of attorney is a legal document in which you authorise another person(s) to make financial and legal decisions on your behalf during your lifetime.

• do you have an enduring power of attorney or any other type of power of attorney in place?
• does an existing power of attorney need to be revoked because it is inappropriate?
• who do you wish to appoint as your attorney (and, if applicable, alternative attorney)?

2.       Other Powers of Attorney

As to Medical and Lifestyle Powers of Attorney (which are separate documents to Powers of Attorney relating to financial matters):

• Do you wish to appoint a Medical Attorney?
• Do you wish to appoint an Enduring Guardian to make lifestyle decisions for you and/or consent to medical treatment, if you are incapable of these decisions.

For all enquiries regarding Wills and Estate Planning issues please contact:

DANIEL KELLIHER
Senior Associate
Accredited Wills & Estates Specialist
T: +61 3 9609 1662
E: dkelliher@rk.com.au

ADRIAN GREEN
Senior Associate
Accredited Wills & Estates Specialist
T: +61 3 9609 1682
E: amgreen@rk.com.au

FLORENCE WONG
Solicitor
T: +61 3 9609 1737
E: fwong@rk.com.au