By Adeline Schiralli ' Willis & Bowring (Estate Planning Division)
In the 'good old days' life was simple. Your estate consisted of your family home, your personal possessions and some money in the bank. Accordingly, a simple will was enough to ensure that your beneficiaries received your estate upon your death. You appointed an executor, left everything to your spouse with an alternative provision that if you were both to pass away, your children received your entire estate. If you lost capacity, your spouse could automatically do anything they needed to do on your behalf to ensure that your finances were looked after and to ensure you received proper medical treatment.
Unfortunately, things are much more complicated now! Estate Planning consists of more than just a Will. Testamentary Trust Wills, Binding Superannuation Death Benefit Nominations, Living Wills, Powers of Attorney and Enduring Guardianships are only a small example of the powers that can be put in place to help safeguard your future and the future of your beneficiaries. To ensure that all of the assets you own and/or control are looked after in the event of your death and/or incapacity, Estate Planning is essential for everyone.
The fact however is that the vast majority of Australians are unaware of the complications a 'simple Will' can cause for their beneficiaries in the future.Many people want to simplify their affairs and believe that putting in place a simple Will or Estate Plan will make things a lot easier for their families.What they don't understand is that sometimes a simple will can create far greater problems and can be far more costly for themselves and their beneficiaries down the track. If there are problems within your family (such as risk of divorce or bankruptcy for one or more of your beneficiaries),Testamentary Trust Wills may provide greater asset protections to those beneficiaries than a simple Will can offer. Superannuation also confuses a lot of people as they are not aware that it does not automatically form part of their estate and as such may not automatically be distributed under their Wills.
Estate Planning is also not just about death. Many people who have Wills have not considered appointing someone to look after their affairs in the event that they lose capacity. As a Will is only operational once the will-maker passes away, a lot of people are not aware that an executor does not have the power to make decisions on behalf of the will-maker if the will-maker is still alive but has lost capacity. Accordingly, anyone above the age of 18 should consider appointing someone to look after their legal and financial affairs under an Enduring Power of Attorney and their medical decisions under an Appointment of Enduring Guardian.
As life gets more complicated, so does the law. Make sure that all of your assets are considered when updating your Will and/or Estate Plan by consulting with a solicitor that specialises in Estate Planning. If you require assistance with any Estate Planning needs, Adeline can be contacted at Willis & Bowring solicitors on 9525-8100.