Estate Planning some Helpful Information
At Lopich Lawyers, we work closely with other professional advisers, including accountants, financial planners, investment advisers and private bankers, to manage and transfer your wealth as you intend in a smooth and tax effective manner to meet your goals. In this way we are able to make sure that you receive the best possible advice when deciding how you would like to leave your estate.
To make it even easier for you we have offices in Sydney’s CBD and Shell Cove south of Wollongong. If you don’t have Will or would like to update your current Will then we can help you.
What is a Will?
A Will is a legal document which sets out how you want your assets to be dealt with after your death. It names the people or organisations (called “beneficiaries”) who you would like to leave your property, cash and other assets to. It also allows you to appoint someone, (called your “executor”) who you want to handle your affairs after you die.
Why should you have a Will?
If you die without a Will, you are said to have died “intestate”. If you die intestate your estate will be divided in accordance with a fixed set Rules, called the “Intestacy Rules” which are set out in the succession laws of New South Wales.
By having a valid Will you:
- can ensure that your assets will be dealt with according to your wishes and not as set out in the Intestacy Rules;
- can ensure that the person you choose will administer your estate (unless a court decides otherwise);
- will be comfortable in the knowledge that the administration of your estate will be easier and less expensive than under the Intestacy Rules;
- can ensure that your assets are distributed in a tax effective manner
What do I Need to do?
We can prepare your new Will so why not talk to one of our lawyers who will help you through the process.
Our services include:
- advising on and preparing traditional Wills.
- advising on and preparing tax effective testamentary trust Wills.
- setting up trusts for incapacitated beneficiaries.
- dealing with assets located interstate or overseas.
- dealing with the risk of a possible breakdown of a beneficiary’s marriage or de facto relationship.
Making bequests to charities.
If you would like to make a gift of part of your estate to your favourite charity, we can advise you on the appropriate form of the gift to that charity.
Providing for your children
We can help you to appoint a guardian to care for your children while they are minors (under the age of 18 years of age).
If you and your spouse die leaving children under the age of 18, your Executor usually has the power to provide for them out of the children’s share of your estate.
We can also help you to make your wishes concerning how you would like your children to be brought up clear and for those wishes to be included in your Will.
Power of Attorney and Enduring Guardianship
A Power of Attorney is a document by which a person (called the “grantor”) authorises someone else (called the “attorney”) to make financial decisions for that person if he or she is unable to do so for himself or herself. If the Power of Attorney is an “Enduring” Power of Attorney that authority continues to operate even though the person who granted the power no longer has the mental or physical capacity to do so themself.
It is a commonly held belief that a Power of Attorney also gives the attorney the sole authority to make medical and other non financial decisions for the person (grantor). This however, is not incorrect.
In NSW, separate laws apply if a person wants to appoint someone else to make medical and other non financial decisions for them if he or she becomes physically or mentally incapacitated.
The person is called an Enduring Guardian and is appointed by the person who subsequently looses capacity to make those decisions for themself. The document is called a Deed of Guardianship.
We can advise you how you can ensure (as far as possible) that your wishes will be put in place if you become incapacitated.
We can also advise you of your rights and obligations if you have been appointed to be someone else’s Attorney or Enduring Guardian.
Jointly Owned Property
Property you own with another person as a joint tenant is not controlled by your Will if you die first. If you are a joint tenant with someone else and die before the other joint tenant then your interest in the jointly owned property automatically passes to the surviving joint tenant(s).
The most common example of property that is jointly owned is where a couple own the family home as joint tenants. The benefit of this form of joint ownership is that the share of the property which the deceased joint tenant owned does not form part of their estate and is simply transmitted to the other surviving joint tenant(s).
Your superannuation policy will usually provide for a nominated person to benefit if the superannuant dies. For this reason the sum to be paid out under the superannuation policy if the person dies does not automatically form part of their estate when they die.
This means that your superannuation payout will not automatically be dealt with in your Will.
Instead, the distribution of your superannuation payout on your death depends on the rules which apply to your particular superannuation fund.
Superannuation laws are extremely complicated and tax is payable in certain circumstances on the sum paid out under the superannuation death benefit.
Let us help you by providing advice if you want to ensure as far as you are able, that your
Superannuation benefit is distributed in accordance with your wishes on your death and in the most tax effective manner.
Businesses, Companies and Family Trusts
There are a range of complicated rules that apply to property and other assets owned by businesses, companies and trusts.
For example the shares that you own in a company will form part of your estate and are able to be dealt with in your Will. However, a family owned company which you may have founded or operated for many years may not automatically form part of your estate when you die.
If you have an interest in a company or trust or other jointly owned business assets, we can provide you with advice on how these interests may affect your estate.
We can also provide you with advice concerning succession planning arrangements for your family owned business including putting a Buy/Sell Agreement in place which will assist a smooth transition of your interest in the business to the remaining business participants.
Can your Will be Challenged?
A good reason to obtain advice before you prepare your Will is that after you die certain people have the legal right to apply to the Court to challenge your Will if they feel that you have treated them unfairly in your Will.
These people include your children, your spouse (including a de facto spouse), any former spouses and any person who is, or was, financially dependant on you during your life.
Why not speak to one of our lawyers who will be able to give you helpful advice you if you are concerned about a challenge to your Will.
Marriage, Separation or Divorce Affect Your Estate Planning
It may come as a surprise to some to discover that if you have married since signing your Will or other estate planning documents or if you are planning to get married and do not specifically state in your Will that the Will is made in contemplation of your impending marriage then your Will, will be automatically revoked on your marriage.
Speak to Lopich Lawyers if you are concerned about the effect that any of the following may have on terms of your Will if:-
- any of your beneficiaries have changed their name since your Will was prepared;
- anyone you have appointed to act for you dies or becomes unsuitable to act;
- one of your beneficiaries dies;
- you sell any property you have specifically mentioned in your Will or other testamentary documents;
- your relationship with your spouse or de facto partner has broken down.
Let Lopich Lawyers help you when it comes to issues concerning your estate planning strategy.