Frequently Asked Questions

A:

Estate planning involves making a plan in advance and naming whom you want to receive the things you own after you die. Your estate is made up of everything you own – your car, home, other real estate, bank accounts, investments, life insurance, furniture, personal possessions etc. You can’t take it with you when you die so it is important that you plan to ensure your wishes are respected when you are no longer alive.

A considered and tailored estate plan will ensure that your assets are transferred according to your wishes, in an effective manner. An estate plan can also set up protections and controls for your benefit in instances where you might become incapable of handling your own affairs during your life.

A thorough and comprehensive estate plan involves:

  • A review of what you own and debts you owe.
  • An assessment of how you currently hold your assets and manage your financial affairs.
  • Consideration of whom you want to benefit and assist with your estate distribution during your lifetime and after you have passed.
  • An assessment of your legal obligations to dependants and family members.
  • Consideration of what risks your estate might have to a Family Provision Act claim.
  • Advice on how you can structure your estate distributions to obtain a more tax-effective outcome for your beneficiaries.
  • Advice on the options available to deal with your assets and personal affairs in the event of you becoming incapable of handling your own affairs during your lifetime.

lightbulbIt is recommended that you meet with a legal adviser every few years especially following key life events such as the birth of a child and the purchase of a new house to ensure your estate planning objectives are met and your affairs are in order.

Read the article Is Your Estate Plan Up to Scratch? for more information.

Kott Gunning Lawyers offers a free Will and Estate Planning Health Check with a lawyer as part of its Lifetime Estate Support Service. Read more on the Free Estate Health Check page.

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

Your estate plan, and what documents you need, should be tailored to your unique circumstances. Not all documents will suit everyone’s circumstances. You should consider whether the following documents suit your needs:

  • A Will to ensure that you’ve passed your assets on to your beneficiaries in the most effective way and that you’ve left suitable protections for the people you care about.
  • Enduring Power of Attorney to ensure that your financial affairs will be properly managed by someone you trust, should you be temporarily unable to attend to your affairs or become permanently disabled.
  • Enduring Power of Guardianship to provide peace of mind about decisions affecting your personal welfare if you become incapable of making those decisions for yourself.
  • Advanced Health Directives to give guidance to your doctor in the event you are unable to express your views when critical treatment is required.
  • Superannuation Benefit Nominations to direct your super fund trustee how to pay out your superannuation fund balance when you die.

lightbulb
An up to date legal Will is the key document in an effective estate plan.

 

Read the article The Risks Of Using A Will Kit for more information.

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:
  • Your Will instructions. Executor and beneficiary details as well as details of trusts and funeral arrangements.
  • Asset structure, including real estate ownership, superannuation benefits, company or partnership details.
  • Where your assets are. There may be different ownership or taxation considerations for overseas assets.
  • Do you have an Enduring Power of Attorney?
  • Do you have an Enduring Power of Guardianship?
  • Do you have an Advanced Health Directive (colloquially known as a Living Will)?
  • Details of life insurance or Total Disability Insurance policies held.
  • Have you made a current Death Benefit Nomination on your Superannuation?
  • Do you have a Business Succession Agreement? If so, provide a copy to your lawyer.
  • Have you signed a Pre or Post Nuptial Binding Financial Agreement?

lightbulb
Go to your meeting prepared and take copies of most documents where possible so they can be kept on file.

 

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

“Homemade” Wills can and do cause significant problems for beneficiaries.
A badly drafted Will can lead to significant problems in just getting Probate, and then the cost of the legal argument over what it really means can run into tens of thousands of dollars.

In an age where we typically own more things than in the past, have more personal relationship problems and hold our assets in superannuation funds and trusts, it is becoming less likely that our financial and personal affairs are simple. Diverse assets and family structures are becoming the norm and require legal guidance to ensure your Will is really going to give effect to your wishes.

If you die without a Will, you are known to have died “intestate”, which means that the laws of the appropriate State or Territory in which you reside will govern how your property is to be distributed amongst a range of your relatives. An Administrator must be appointed (usually by application by one or more of the persons entitled to share in the estate pursuant to the relevant legislation). As a last resort the Public Trustee may be appointed to administer an estate.

lightbulb
Read the article Do As You Wish Just Be Clear
Read the article What Happens If I Die Without A Will 

 

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

Your Will is the key to your Estate Plan. Most people know it sets out who will sort out your affairs when you die (the Executor) and who will get what assets (the Beneficiaries).

Your Will can be simple if your affairs are straight forward and you do not want to create any restrictions on how the Beneficiaries are to receive their share of your estate.

You can however use your Will to deal with complex assets and family situations and you may choose to:

  • Set up tax effective structures (known as testamentary trusts) for your beneficiaries that will benefit them financially for the rest of their lives.
  • Establish protective trusts for vulnerable beneficiaries so that the assets of the estate are protected from being wasted and are always there for their benefit.
  • Provide guidance where an estate is distributed unequally as to the reasons for the division.
  • Deal with protecting children’s interests where there are children from both a current and a past relationship.
  • Appoint guardians for infant children.Give direction about control of family trusts established during your lifetime.

lightbulb
Whether your will is simple or complex it needs to be carefully drafted to ensure it gives effect to your wishes.

 

Read the article I Won Now Pay My Costs
Read the article Knowledge And Approval Of A Will

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

An Enduring Power of Attorney is an essential document for management of your day to day affairs if you are temporarily unable to do so or become permanently disabled. An Enduring Power of Attorney allows you to appoint a trusted person to act on your behalf to assist you in the management of your assets and personal finances. It grants them the powers to sign any document or do anything that you can do legally, subject to any conditions or limitations stated in the document.

Did you know?

  • Enduring Powers of Attorney are not just for the elderly.
  • Enduring Powers of Attorney are not just for when you are incapable of looking after your own affairs.
  • While you are able to make decisions for yourself you can direct your “Attorney” to attend to any business transaction that, for whatever reason, you are unable to deal with personally. For example: – you may be away interstate or overseas, in hospital for a short period of time or have a broken leg and not be able to get to the bank.  The appointed “Attorney” can then do whatever you ask them to do on your behalf.
  • If you become mentally incapable, an Enduring Power of Attorney authorises an “Attorney” to make property and financial decisions for you. In this case the “Attorney” must act only in your best interests.
  • The grant can be made effective immediately and continue to have effect if you become mentally incapacitated at a later date, or alternatively you can set it up so that it only comes into effect when you become mentally incapable.
  • The Enduring Power of Attorney must be prepared in a form that complies with the legislation. There are also strict rules about who can witness an Enduring Power of Attorney for it to be effective.

lightbulbMental or physical incapacity can strike at any age.  With an Enduring Power of Attorney in place, you will have the peace of mind to know that your financial affairs will always be properly managed and your bills will get paid.

 

Read the article Making A Will For A Person Lacking Capacity 

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

An Enduring Power of Guardianship appoints someone you trust to make personal, lifestyle and treatment decisions on your behalf if you are unable to make a reasoned decision for yourself.

An Enduring Power of Guardianship comes into operation only if the appointor loses capacity to make reasoned decisions for themselves. Appointing an Enduring Guardian is important as it gives authority to your guardian to make the sort of decisions you would make yourself in regard to your lifestyle and health if you were still able to do so.

lightbulbIt is important to carefully consider who you choose to be your enduring guardian(s) as they will have the legal decision-making authority for you. You should ensure that they are trustworthy and likely to always act in your best interests.

 

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

An Advanced Health Directive, or Living Will, enables you to give directions regarding your future medical treatment. It empowers you to record how you wish to be treated in future instances where you are unable to make decisions for yourself, due to incapacity.

Each Australian State has legislated for some form of Advanced Health Directive. In Western Australia, an Advanced Health Directive must be made in compliance with the standard form prescribed by regulations in order to recognised automatically. The intention of the legislation is to provide for Advanced Health Directives to be made which will bind the doctor treating you to act in accordance with the directive in circumstances where you no longer have the capacity to provide such instructions yourself.

The term “treatment” includes medical, surgical and dental treatments, including palliative care and life-sustaining measures. An Advanced Health Directive is only applied to your treatment decisions if you are unable to make reasoned judgments yourself.

lightbulb
An Advanced Health Directive takes priority over any direction from an enduring guardian, except in very limited circumstances which your legal adviser will be able to explain to you.

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

A:

Death Nominations are legal documents used to qualify the distribution of your superannuation. There are two types of Death Nominations, binding Death Nominations and non-binding Death Nominations.

Binding Death Nominations

A binding Death Nomination provides greater certainty about who will receive a death benefit in the event of your death as they bind the Trustee of your superannuation fund to distribute your superannuation to the person or persons nominated in a Binding Death Nomination Form.

Generally for a Binding Death Nomination to remain legally effective, it must be renewed or updated every three years.

Important to note: Superannuation is becoming such a large component of an individual’s asset, and with the taxation consequences of superannuation payments due to death being quite complex, an improperly thought out Binding Death Nomination may have costly tax consequences.

Non-Binding Death Nominations

A non-binding Death Nomination allows you to nominate a beneficiary however, the trustee of your superannuation fund has the final say as to who should get the death benefit, considering all of the circumstances in deciding how the death benefit should be paid.

Important to note: A non-binding nomination will not override a valid binding nomination.

lightbulb
Self managed funds generally tend to have more flexible rules on what can be done with a death benefit nomination.

 

Read the article Dispute Over Superannuation 

Kott Gunning Lawyers offers a free Will and Estate Planning Health Check with a lawyer as part of its Lifetime Estate Support Service. Read more on the Free Estate Health Check page.

To read more useful articles and tips about future proofing your will and estate planning, please go to http://www.kottgunn.com.au/update/wills-estate-planning-and-trusts/

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

Request an appointment