Planning for your family’s future after you’re gone is a really important legal task.
It is important that when you prepare your will that you consider the most financially sound and practical way of passing your estate on to your beneficiaries. This will ensure that you protect the Estate from significant tax events which may reduce the value of the Estate, and maximise asset protection to protect your beneficiaries from bankruptcy or a relationship breakdown. You should also consider:
- Who may be eligible to claim on your Estate under family provision legislation, and what may need to be done in order to give your Estate maximum protection from any potential claim?
- Who are your beneficiaries and what is the impact of an inheritance on their financial position – particularly in relation to government benefits which they may be relying on?
- How financially astute are your beneficiaries and are you concerned about their money management skills?
In considering these issues, you can then decide what the most effective way of structuring your Estate is.
It is also important to consider who you will appoint as trustee and executor of your Estate, as this person will be responsible for the financial management and administration of your Estate, choosing the wrong person can have dire impacts on your Estate once you are gone.
If you take the time now to make an effective legally binding Will and Testament you can save your family not only stress but money in what will undoubtedly be a difficult time for them.
Shire Legal’s will and estate planning lawyers can help:
- Advise you in regard to estate and Probate laws
- Write a will that maximises the inheritance for your family
- Set up family and testamentary trusts
- Advise you in regard to choosing executors and guardians
- Minimise the chance that your will is contested and subject to litigation
- Advise in regard to estate tax (including capital gains) and financial concerns
- Safely store your will and other important legal documents
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.
Consider your superannuation
In most situations, and depending on how you structure your estate, your superannuation entitlements generally fall outside of your Estate and are treated separately to those assets administered under your will. It is therefore important that you have regard to your superannuation in your estate planning and consider whether you have made a binding death benefit nomination. There is often confusion in relation to this issue, and while many people believe that they have nominated a beneficiary, they have not affected a binding nomination.
Generally speaking, a general nomination is non-binding on the trustee of the superannuation fund and they retain a discretion as to who will inherit your death benefit upon your passing. Your nomination will be taken into consideration; however, it is ultimately up to the trustee of the fund to apply the relevant legislation and determine who takes the benefit. A binding nomination is a written document which typically must be witnessed by two independent witnesses over the age of 18 which, for most funds, expires within 2-3 years of your making the nomination. This forces you to keep your nomination up to date as your circumstances change.
Why can beneficiaries only inherit after 30 days?
It is common for Wills to contain an express statement that beneficiaries must survive the testator for at least 30 days in order to inherit under the Will.
The requirement that beneficiaries survive testators by 30 days is found in Succession Act 2006 (NSW) s 35. Section 35(2) however, allows this rule to be excluded by a contrary intention in the will.
It is understood that the law was introduced for practical reasons – to avoid the multiplicity of administration of the same property through several estates. Some suggest that it was derived from the common law doctrine of lapse. US commentary states that this was developed as a remedial measure that was initially introduced to effectuate intent when drafters fail to anticipate lapse and do not expressly provide alternative takers. As the legal concept is based on the presumed intent of the testator, the law provides that it does not apply if there is contrary intent.
Contact us to find out more or to arrange a consultation with an experienced lawyer in Miranda.