It is important for anyone over the age of 18 years with full testamentary capacity to have a valid will. Having a will in place ensures that your assets go to those persons you wish to benefit, any minor children are cared for in accordance with your stated wishes and that your body is disposed of by either burial or cremation. Without a valid will you are effectively giving up your rights as to how your property will be divided and it may go to someone who you did not wish to benefit.
A lawyer is the best person to draw up a Will as there are many points to be considered. To prepare for your appointment you should take the following preliminary details to your first consultation:
(1) The full name and residential address of your executor (the person who will administer your estate), it is preferable that details of an alternate Executor also be provided. A person who is a local or resident in your state is to be preferred.
(2) The full names and residential addresses of your beneficiaries (i.e. those persons who will inherit from your estate, or details of any charities you wish to provide a bequest too)
(3) A list of all of your assets (anything that you own), debts, leases, business obligations, superannuation benefits, life insurance policies, family trusts, etc.
(4) Consideration as to whether you wish to be buried, cremated and/or an organ donor.
Once a will have been signed and witnessed, it remains valid until such time as it is replaced or you marry or divorce, unless such event is specifically mentioned in the will.
It is imperative to review your will frequently as it can only be changed if you have full testamentary capacity.
An Enduring Power of Guardianship may be entered into by anyone over the age of 18 years with full legal capacity. Such document appoints another person/s to make decisions in relation to that person’s living arrangements, work, medical treatment, access to services or contact with other people in the event of a loss of capacity to make decisions for oneself. A loss of capacity may arise through an illness such as dementia, a loss of cognitive function through medication or because of trauma or injury.
The person/s appointed must be prepared to act in the person’s interests at all times and must not be in a position where their interests conflict with the person for whom they are making decisions.
It is advantageous to have such a document in place regardless of age, as life is fragile. If you lose capacity and do not have an Enduring Power of Guardianship in place, then a family member or friend will need to make an application to the State Administrative Tribunal for a Guardianship Order. Such application will require medical evidence and reports from a social worker or carer, before the listing of the application for hearing. It is more expensive and time consuming to have a Guardianship Order made, than to have the document prepared whilst you have capacity.
An Enduring Power of Guardianship should be regularly reviewed to ensure it accords with your current wishes. It is becoming increasingly common for aged care facilities to required their residents to have an Enduring Power of Guardianship in place.
An Enduring Power of Attorney is a legal document that may be entered into by any person over the age of 18 years with full legal capacity. With an Enduring Power of Attorney you appoint another person to make decisions about financial matters or enter into land transactions for you. This may be because you either subsequently lose capacity or simply want another person to make those decisions for convenience, such as if you are overseas. You may choose to appoint one person solely or 2 persons either jointly and/or jointly and severally depending on your circumstances. One alternative person may also be appointed as a safeguard in the event that the first mentioned person/s cannot act. If you wish your Attorney to deal with any land transactions, then your Enduring Power of Attorney must be registered at Landgate. Registration can occur at any time after signing the document, although a Statutory Declaration must also be signed if more than 3 months has passed since the date of signing.
An Enduring Power of Attorney continues in force if you lose capacity, and therefore, should be regularly reviewed to ensure that it reflects your current wishes.
Consulting a lawyer for estate planning advice can have advantages for your estate insofar as your beneficiaries are provided for in the best possible manner. A standard will provides for the will-maker to leave his or her estate to the spouse, then to their children and possibly grandchildren. However, there are often situations where special considerations should be applied:
Where there are children of previous or subsequent relationships, consideration ought to be given to their provision so that they are adequately provided for in the event of re-marriage. Mutual will clauses should be considered.
Where there is a Discretionary Family Trust then your Will must specify who will take on the role of any position you may hold in the trust as at the date of your death. There may also be important tax implications to be considered which should be undertaken by a professional tax practitioner appointed to you in consultation with our office.
Where there is a self-managed superannuation fund or an industry fund proper consideration must be given as to whether benefits must pass to interdependents rather than through the terms of the Will. Consideration must also be given to the creation of a Binding Death Benefit Nomination.
Where there is a Discretionary Family Trust then your Will must specify who will take on the role of any position you may hold in the trust as the date of your death. Trust assets may not specifically fall into your estate so careful consideration should be given to the terms of the trust deed, as the trust determines who receives those assets.