When should I review my estate plan?

A person should review their estate plan if their circumstances change or at least every 3 years.

Circumstances that may warrant a review of an estate plan include:

• You do not have a will.
• You have a will but want to change your executor.
• You have a will but have since divorced or married.
• You have a will but are pregnant.
• You have a will, but your wishes have changed.
• You have a will, but your assets and liabilities have changed.
• You have property in multiple jurisdictions.
• You have become a blended family.
• You have a will but have been diagnosed with an addiction or serious illness.
• You have a will but have had a meaningful family argument.
• You are concerned someone may bring a family provision claim against the estate.
• You want to ensure a specific person does not benefit from your estate.
• You have a complex estate.
• You want to explore more tax-effective options.
• You do not have a Power of Attorney or Enduring Guardianship form.
• You have a Power of Attorney but want to revoke or change it.
• You have an Enduring Guardianship form but want to revoke or change it.
• You want to set up a testamentary trust.

If you believe any of the above apply or are seeking tax or legal advice on your estate plan, contact Empower Wills and Estate Lawyers today.

Protecting Your Beneficiaries Through Estate Planning

A will is a legal document that outlines how your assets will be distributed when you die.

A will can provide significant protection to your beneficiaries.

First and foremost, the will is a legal document that must be followed.

Although there are several rare instances that may mean the terms of the will are not followed – such as where the will is found to be not valid, or where the beneficiaries jointly agree to divide the estate in a different way, or where the Supreme Court makes a family provision order dividing the estate in a different way – these exceptions are generally rare, and a professionally prepared estate plan can provide a certain level of protection for intended beneficiaries.

When a person dies without a will, they are said to have died ‘intestate’. Where a person dies intestate, their assets are distributed according to the intestacy laws in the relevant jurisdiction. The risk of dying intestate is that your assets go to the wrong people. This can have significant financial implications for a person’s loved ones.

The interests of your beneficiaries can be further protected by appointing a trusted executor. The executor is the designee who will carry out your wishes and ensure the estate is distributed according to your wishes.

The Role of Wills and Trusts in Managing Your Estate

The two most common ways to leave your estate are by will or by testamentary trust.

A will revokes prior wills, appoints executors, appoints guardians for minor children, provides specific gifts and gifts of residue, and usually sets out the executors’ powers.

A testamentary trust, however, does all of the above plus establish one or more trusts in which all of the estate, a portion of the estate, or certain assets are settled on trust for the long-term management of the assets in a favourable tax environment for the benefit of beneficiaries (including providing ongoing financial support to minor and adult children) while protecting the estate assets from the beneficiaries’ creditors.

The testamentary trust is a legal document that appoints a trustee who is responsible for managing the trust assets. The trustee must act in the best interests of the beneficiaries. Whether to set up a trust depends on a range of important factors.

The Importance of Power of Attorney in Estate Planning

In addition to a will, an estate plan also usually includes an Enduring Power of Attorney and Enduring Guardianship form.

A power of attorney is a legal document within which a person (the Principal) can appoint someone else (the Attorney) to make legal and financial decisions on their behalf.

A general power of attorney authorises the Attorney to make financial and legal decisions on your behalf but which ceases if the Principal loses capacity.

On the other hand, an enduring power of attorney continues to operate even after the Principal loses capacity, ensuring that the Principal’s legal and financial affairs can continue to be managed if they become unable to manage their own affairs due to age, accident or illness. An enduring power of attorney can be an important part of estate planning, as it ensures someone you trust can act on your behalf if you lose the ability to manage your own affairs.

Another document usually prepared as part of an estate plan is an Enduring Guardianship form which allows a person (the Principal) to appoint another person (the Guardian) to make medical decisions and lifestyle decisions for them if they lose the ability to make decisions for themselves. A person may also choose to prepare a health directive called an Advance Care Directive detailing what specific medical treatments or end of life treatments they wish to receive or not receive.

It is important to seek advice from an experienced will and estate lawyer as laws applying to financial power of attorney and enduring powers of guardianship may be different depending on the state.

Beneficiary Designations

The documents within which the beneficiaries are named are the will or testamentary trust. A person can usually give their estate to whoever they want; however, each jurisdiction of Australia gives the court power to vary the terms of a will if the will failed to adequately provide for someone who should have been adequately provided for.

Financial Accounts

The executor is responsible for the financial accounts while acting as executor.

The trustee is responsible for the financial accounts while acting as trustee.

Estate Planning Costs

Our fees for estate planning are tailored to the specific client. The smaller and less complicated the estate, the lower the fee, and the larger the estate and more complicated the structure, the higher the fee.

Fees for creating an estate plan will depend on your objectives and thecomplexity of your estate.

Contact us today for an obligation-free quote.

Contact Our Lawyers to Get Started With Your Estate Plan in NSW

If you need an estate planning attorney, probate lawyer, or business succession lawyer to help ensure your wishes are carried out, contact the estate planning team at Empower Wills and Estate Lawyers on 1300 414 844 today to discuss your estate planning needs.

Our dedicated team can help you navigate a client’s personal and financial complexities and financial matters, protect your assets, and help ensure that your assets go to those whom you choose and that your wishes are honored. We offer personalised advice and flexible fee structures tailored to your needs. Contact us today to schedule a consultation to put a plan in place and secure your peace of mind.

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.