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Estate Planning – What you need to know
3 min read
Key Takeaways
- Need for a Will: A valid Will ensures your assets are distributed as you wish. Without it, your estate follows rigid intestacy rules, which may not match your preferences.
- Importance of EPOA: An EPOA lets you appoint someone to make decisions if you become incapacitated. Without it, your family may face a complicated court process.
- Superannuation Nominations: To include superannuation in your estate, complete nomination forms with your fund. Otherwise, the fund decides how it’s distributed.
Estate planning is crucial to ensure your wishes regarding the care of your loved ones and the distribution of your assets are known and fulfilled when you pass away.
Estate planning involves:
1. Preparing a Will; and
2. Preparing an enduring power of attorney (EPOA).
What is a Will?
A Will is a legal document in which you provide instructions on how your Estate should be managed upon your death. Your Estate includes your assets such as cash, property you own, cars and shares.
In your Will you decide:
- Who receives your Estate and how;
- Who will administer and distribute your Estate;
- Who will look after your children/pets; and
- Who will hold onto your assets until your children are of age to inherit them.
Why do I need a Will?
Regardless of whether your affairs are simple or complex, to have certainty about who will inherit your assets you must have a valid, well-drafted Will.
Passing away without a valid Will, or ‘intestate’, means:
- The court will distribute your Estate in accordance with the ‘rules of intestacy’.
- These rules are inflexible and your wishes will not be considered.
With blended and non-traditional family structures becoming increasingly common, it is more important than ever before to have a robust Estate plan.
- Blended families bring further complexities and greater risk.
- Dying intestate could mean your Estate is distributed to estranged family members, family homes sold, or a business broken up contrary to your wishes.
Moreover, dying intestate can be far more costly, time consuming, and significantly more stressful for your loved ones responsible for handling your finances.
I don’t own any property; do I still need a Will?
You may think your assets are minimal, however there
are often insurance(s) inside superannuation with a death benefit that some people are not aware they have. This may amount to a six-figure sum to be considered.
Will my superannuation automatically form part of my Estate?
If you wish to have your superannuation paid into your Estate for distribution, you must complete a nomination form with your superannuation fund and/or life
insurance provider.
If you do not complete these forms, your superannuation fund and/or insurance provider has discretion to determine how these funds are distributed in the event of your death.
What is an EPOA?
An EPOA is a document that allows you to appoint an attorney to make decisions on your behalf if you lose capacity. These decisions include:
- Where you will live and with whom;
- Health care, such as choosing medical procedures; and
- Financial decisions, including collecting and spending your income to pay for your needs.
Why do I need an EPOA?
It is important you complete an EPOA as soon as possible,as you cannot appoint an attorney once you have lost capacity.
Losing capacity without a valid EPOA means:
- Your family will be required to make an application to the Queensland Civil and Administrative Tribunal(QCAT) to seek an order for appointment to make these decisions.
- This order is not guaranteed and is timely, costly and stressful for all involved.
For certainty around who will be making decisions on your behalf if and when you no longer have capacity, you must have an EPOA.
Can I include what medical treatments I wish to have in an EPOA document?
To do this you will need to complete an Advanced Health Directive. Without this, medical treatment decisions will be left to your attorney.
Can I complete these documents myself?
Estate law is complex. Completing your own estate documents bears a significant risk that the documents will be incorrectly executed, or contain instructions that can be interpreted in multiple ways.
If your EPOA or Will is invalid, your family may be required to make an application to the Court to seek directions. This is a timely, costly, and stressful process.
For these reasons, we strongly recommend seeking professional legal advice. Please get in touch with our Wills, Estates & Trusts team to discuss how we can help you protect your
assets and interests on email or (07) 3220 1144.
The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.
