Estate Planning Guide
Background & Considerations
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Client One:
Client Two:
Your Estate Planning Workbook
adviser notes:
Estate Planning
A Will is essentially a plan made in advance outlining
whom you want to receive the things you own after death.
However, an Estate Plan is much more than that and may
include:
•
Instructions for your care if you become disabled or unable to
care for yourself before death.
•
Naming a guardian and an inheritance manager for any minor
children.
•
Providing for family members with special needs without
disrupting government benefits.
•
Providing for loved ones who might be irresponsible with money
or who may need future protection from litigation, creditors or
relationship breakdowns.
•
Providing for the transfer of your business at disability or death.
•
Minimising taxes, court costs, and unnecessary legal fees.
•
Being an ongoing process, not a one-time event.
Your plan should be reviewed and updated as your family and
financial situations change over your lifetime.
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© Astute Wealth Advice Pty Ltd 2015
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The purpose of this document
is to provide details around
what an Estate Plan is and
the various components that
are involved. Please read this
document and consider how the
information provided may be
applied to your circumstances.
This information will eventually
be used by your adviser in
preparing an Estate Planning
Brief for your nominated
solicitor.
If you have any questions or
wish to discuss any part of this
document please contact your
adviser.
Do I need a Will?
adviser notes:
A Will is generally the most important document any
person will sign and is at the centre of your estate plan.
This document outlines the main
decisions required to construct
an effective estate plan.
It is important that an estate plan is specifically tailored to your needs
and circumstances during your lifetime. A sensible plan will aim to
minimise tax, provide asset protection (as reasonably expected), cater
for the circumstances of beneficiaries and effectively utilise existing
structures, such as superannuation funds and trusts.
After death only a court can alter the terms of a Will and, unless a
court intervenes, the Will regulates how the deceased’ assets are to
be finally dealt with.
Please read through the
information provided and
answer the questions and make
notes in the sections available.
A Will can be challenged for a host of reasons ranging from improper
execution of the document through to complaints that it did not
adequately apportion the deceased’ estate to potential or actual
beneficiaries. Sound estate planning will ensure disputes or errors
in its execution are minimised and the beneficiaries catered for
appropriately.
Executors
The executor of a Will is responsible for carrying out
the wishes of a person after they die.
The role of the executor is to manage the estate within the terms
of the Will and protect the assets of the estate. The executor of
an estate must comply with various laws and rules that govern the
administration of deceased estates.
Many people, when nominated as an executor, are unsure of what
is expected of them. The duties of an executor can be complex
and demanding and require an understanding of the law, tax and
accounting requirements.
There are many steps involved in being an executor.
The duties of an executor may include:
•
Attending to funeral arrangements
•
Locating the Will
•
Applying to the Supreme Court for a grant of Probate of the last
Will (Probate is a formal document that confirms the executor
and gives them permission to administer the estate)
•
Determining the beneficiaries
•
Collecting assets
•
Making sure all claims and debts are received, assessed and paid
if substantiated
•
Distributing assets according to the terms of the Will, including
managing longer term trusts
•
Preparation and management of accounts
•
Preparing and lodging taxation returns
•
Defending litigation
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It is important your proposed
executor is aware of your
nomination and understands
what the executor’s role entails.
Choosing an Executor?
In addition to honesty, organisation and communication skills, other
important considerations should also play into who you choose as
your executor. For instance, family dynamics are extremely important
in end of life issues. Who you choose can lead to in-family squabbling
and Will contests, so carefully consider the impact of your choices
and seek advice if necessary. Whether they should or not, people
read into your decisions and assume you are making judgments
regarding their worthiness (e.g., naming the youngest child as the
executor of a will because he or she is a lawyer or accountant may still
be construed as favouritism).
Another basic consideration is the executor’s location. Things such as
court appearances, checking mail and property maintenance can be
considerably more difficult if the executor does not live near to where
the majority of the assets are located.
Typically it is often helpful to
select someone who stands to
inherit a significant amount of
property under the Will. This is
helpful because self-interest can
help ensure that the property is
well maintained, and is handled
in a timely manner.
Who would you want to appoint as your Executor?
Executor for client one
Executor for client two
Full name
Date of Birth
Current address
Current Occupation
If your first choice for executor couldn’t take on the responsibility,
who would you want to appoint as your substitute Executor?
Substitute Executor for client one
Full name
Date of Birth
Current address
Current Occupation
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© Astute Wealth Advice Pty Ltd 2015
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Substitute Executor for client two
Beneficiaries
adviser notes:
How would you like to have your assets distributed?
The Will can be as detailed as you
like and can include specific items.
An example could be as simple
as: ‘my surviving wife/husband will
receive all my assets’
Client One Deceased
Or can list numerous beneficiaries
receiving a percentage of assets
and/or specific amounts and
specific items:
‘John will receive 25% of my assets
and my Omega wrist watch’, or
Client Two Deceased
‘Jane will receive $100,000 and my
wedding rings’.
Often when both are deceased the
estate is shared equally between
the surviving children:
‘Our assets should be divided
equally between my surviving
children, in addition John will
receive my Omega wrist watch,
Jane will receive the wedding
rings….etc.’
Both Deceased
In the event of a truly catastrophic
event then often the beneficiaries
will be parents and/or siblings:
All family members Deceased i.e. children (if applicable)
‘Our assets would be shared
equally between our two sets of
parents’, or
‘Our assets would be shared
equally between our siblings’.
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© Astute Wealth Advice Pty Ltd 2015
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Key issues and considerations
There are situations which may require particular attention
when putting in place your estate plan.
If your responses would be yes to any of
these points (right), please provide details
Key issues to be aware
of when deciding how to
structure your estate plan:
•
Issues of concern to me
Is there anybody who could be
dissatisfied with the distribution
of my estate and might seek to
challenge the provisions of the
estate plan? (This would include
any children or grandchildren,
former spouses and anyone to
whom you have provided financial
assistance in the past, regardless
of whether or not you still have any
contact with them)
YES
•
Is there anybody in my family
with special needs (such as
disabilities) who needs to be
provided for in my estate plan?
YES
•
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NO
Do I have any trusts, companies
or self-managed super funds?
(Additional steps may need to
be taken to ensure that control
of these entities pass as you
intend - refer to the fact sheet
titled ‘Information to provide for
complimentary review’).
YES
Estate Planning Guide
NO
Are any of the intended
beneficiaries of my estate
exposed to personal or business
risk? (For instance, are any
of the intended beneficiaries
encountering matrimonial
difficulties or involved in
professions which may result in
them getting sued?)
YES
•
NO
Are any of my assets located in
other jurisdictions? (If assets are
located overseas, your estate plan
may need to specifically cater for
this)
YES
•
NO
NO
Guardians for Minors
adviser notes:
Ordinarily, a child’s surviving parent will automatically be
the child’s guardian. However, it is necessary to make
provision for circumstances in which both parents die at
the same time.
What are the powers and responsibilities
of a guardian?
A guardian is responsible for the daily and long term care and welfare
of your child and for making important lifestyle decisions on their
behalf. The guardian must ensure that the child is adequately housed,
clothed and educated. The guardianship of minor children is an
important and often onerous task and the appointment should be
thought through carefully.
Although appointing a guardian
in your Will may help avoid
disputes between your family
members by making your
intentions clear, it is not binding.
The Family Court has an
overriding discretion to appoint
a different guardian or remove
a guardian of your child where
it considers this to be in your
child’s best interests.
You should discuss the appointment with your
intended guardian and consider carefully whether:
•
they are prepared to accept the responsibility
•
they are of a similar age to you, and
•
they understand your views on how you wish your
children to be raised.
You may include in your Will (or in a separate Letters of Wishes) an
outline of any specific factors you want your guardians to consider in
the raising of your children.
A guardian does not have any control over, or power regarding, the
assets of your estate or potential trust funds that are established for
your children under your Will. The executor or trustee you nominate
in your Will has this responsibility. While this separation of duties
may act as an effective ‘check and balance’, it is important that the
executor/trustee and guardian are able to communicate easily and
work together in the best interests of your children.
Who would you want to select as Guardian
for your children?
First choice Guardian
Full name
Date of Birth
Current address
Current Occupation
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© Astute Wealth Advice Pty Ltd 2015
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Substitute Guardian
Power of Attorney (Financial)
adviser notes:
A power of attorney is a document empowering a person
(or persons) to act on behalf of another with respect to
their financial arrangements.
Who should you appoint? Usually a
person appoints a spouse, a close
friend, or someone they trust to
manage their affairs responsibly.
However, if your financial affairs
are complicated, you should
consider appointing someone with
the ability to deal with complex
financial arrangements such as an
accountant or solicitor.
Powers of attorney can be either general or limited. Under a general
power of attorney, the attorney is able to do nearly all things the
person giving the power could legally do. Under a limited power
of attorney, the power is restricted in some way. For example, the
attorney may be appointed only for a certain time or only to perform
certain acts.
Enduring Powers of Attorney
Powers of attorney generally cease to be effective when the giver
loses mental capacity. An enduring power of attorney is one that
remains effective after the giver has lost mental capacity. It will remain
in force until death, unless it is revoked while the giver has the mental
capacity to revoke it.
Do you need an enduring power of attorney?
If you have not granted an enduring power of attorney, someone
(e.g. your spouse, son or daughter) will need to apply to a court or a
government tribunal to be appointed. It is likely that an officer from
the government will also need to be involved in the management of
your affairs.
Who would you want to select as your
Power of Attorney?
Power of Attorney for client one
Note: Some people are
ineligible to be your attorney
or guardian including minors,
someone who is or has
previously been bankrupt (for
financial matters), someone who
is your paid carer or health care
provider (for health matters)
and someone who provides a
residential service to you (for
lifestyle matters).
Power of attorney for client two
Full name
Date of Birth
Current address
If your first choice couldn’t take on the responsibility
who would you want to appoint as your substitute
Power of Attorney?
Substitute POA for client one
Full name
Date of Birth
Current address
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© Astute Wealth Advice Pty Ltd 2015
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Substitute POA for client two
Enduring Power of Attorney/
Guardianship (Medical)
adviser notes:
An enduring power of attorney/guardianship (Medical) allows you
to appoint someone to make ‘lifestyle’ and healthcare decisions
relating to your care and wellbeing if you lose capacity due to
illness or injury. This covers all the powers that a parent may exercise
in respect to his or her child and includes the power:
• to decide where you are to live, whether permanently or
temporarily
Who should you appoint? Usually
a person appoints a spouse, a
close friend, or someone they trust
to manage their affairs responsibly
and who is aware of their personal
beliefs and lifestyle preferences.
•
to decide with whom you are to live
•
to consent to any health care that is in your best interests
•
to restrict visitors to such extent as may be necessary in your best
interests, and
•
to prohibit visits by any person if your guardian reasonably
believes that visits by that person would have an adverse affect
on you.
The appointment begins only if and when you are unable to make
decisions (lose legal capacity) about your lifestyle, either temporarily
or permanently. Legal incapacity means that a person is unable to
understand the nature of a document and its effect or is unable to
communicate in any way. Being physically incapacitated, for example
being paralysed and being unable to sign documents, does not
necessarily mean that person is legally incapacitated. The person may
still be able to understand the document and its implications.
Note: There are some people who
are not eligible to be an attorney,
agent or guardian. A minor or
someone who is bankrupt cannot
be appointed. Also, you cannot
appoint someone as a guardian
if he or she is, in a professional or
administrative capacity, directly
or indirectly responsible for, or
involved in, your health care or
treatment, or provides for your
accommodation.
Who would you want to select as your Power of
Attorney/Guardianship (Medical)?
POA Guardianship for client one
POA Guardianship for client two
Full name
Date of Birth
Current address
Current Occupation
If your first choice couldn’t, who would you want to
appoint as your substitute?
Substitute for client one
Full name
Date of Birth
Current address
Current Occupation
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© Astute Wealth Advice Pty Ltd 2015
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Substitute for client two
General Notes
Are there any other notes or considerations that need to be
taken into account as part of your estate planning arrangements?
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© Astute Wealth Advice Pty Ltd 2015
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