Effective Estate Planning is an exercise in protecting and maintaining wealth, and ensuring that assets pass in an efficient way into the control, and for the use, of those for whom the assets are intended.

The Estate Planning Lawyer’s role is to give legal advice and to review and prepare wills and other Estate Planning documents.

The process of Estate Planning will depend on your personal circumstances and needs your family’s circumstances give rise to. It is the process of documenting in a legal way matters relating to your will, your superannuation, perhaps an enduring or special power of attorney and Enduring Guardianship documents; recording in a Memorandum the wishes of your family for your trustees in dealing with your family trust or other trusts, business structures and investments, partnerships and companies.

Way Forward

1. Start the process. It is never too early to think about good Estate Planning. If you do not, it may be too late.

2. Review the need for a special Power of Attorney, or an Enduring Power of Attorney.

3. Review the need for the appointment of an Enduring Guardian.

4. Ensure that assets are able to be properly dealt with if you suffer from a physical or mental incapacity such as a severe accident, illness, stroke or dementia that prevents you from properly managing your affairs.

5. Review all business, insurance, superannuation and investment structures to ensure the assets represented in these will be dealt with as you expect, as circumstances change or people die.

6.Check what assets you can leave under your Will; and consider how to deal with non-willable family assets that you may control. Non-willable assets include:

  • the proceeds of insurance policies where you or your Estate are not the beneficiary of the policy;
  • insurance policies that are owned by others and that are on the Willmaker’s life;
  • assets owned as joint tenants with your spouse or partner, where you are the first to die;
  • assets held in family discretionary trusts (other than loan accounts owing to you by that trust);
  1. your members benefits in your superannuation fund where these are not paid to your Estate; and
  2. assets owned by other parties than the Willmaker (for example the Willmaker’s spouse or partner (that have been placed in the name for other reasons)).

All of these, in most circumstances, are non-willable assets. They are non-willable assets in the sense that the last Will of the Willmaker usually does not have an effect on how these assets are disposed of.

7. Obtain advice on the taxation consequences of your Estate Plan and Will. Income tax, capital gains tax, and stamp duty can all have an impact on the way you leave assets to beneficiaries, and on how non-willable assets pass to or come under the control of others.

8. Make a considered assessment of your circumstances to ensure that you have adequate and appropriate insurance cover. Your insurance adviser and Estate Planning lawyer can work together with you, to assist in this process to ensure that the insurance proceeds pass to those that you want to have the benefit.

9. Make sure that you consider the impact of the receipt of a benefit under a Will, or receipt of control of a non-willable asset, will have on each beneficiary and their family.

10. Make sure you choose good and appropriate people as your continuing advisors, and as your Executors and trustees.

11. When you have worked through these issues:

  • complete your Estate Plan;
  • get all associated documents in order; and
  • complete your will, and complete all associated actions and documents,

Wills Solicitors and Solicitors Parramatta are probate and estates lawyers experienced in all areas of estate planning and probate administration. Contact Solicitors Parramatta for fast, accurate and timely legal advice.

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