What is estate planning?
Estate planning is a specialist area that deals with the preparation of Wills and other documentation.
An estate plan will give you the peace of mind that your hard earned assets will be distributed according to your wishes upon your death.
Estate planning is not a topic many people like to think about, however it is an essential aspect of everyone’s financial affairs. Ignoring estate planning can create unnecessary emotional and financial heartache for your intended beneficiaries. Imagine the thought of your family members arguing over your estate or having the tax man take a large portion – merely because you didn’t have an estate plan!
Proper planning for the distribution of your assets to your loved ones, including smooth transition of the control of your business or family trust (if any) to the next generation, is important to eliminate the risk of conflict and costly disputes in the future.
What we do
We partner with specialised solicitors and work directly with you to make sure your goals are met.
For business owners, having a succession plan for ownership is essential. We can guide you through the process for both business continuity and division of assets.
We will meet with you to clarify your estate objectives, confirm your assets (valuations, inventories and appraisals) and then we directly liaise with solicitors on your behalf to develop your estate plan.
Do you need an estate plan?
Ask yourself these 10 questions
Do you have a current will in place?
Have you reviewed your will after major life events such as marriage, divorce, separation or birth of a child?
If you have children from a previous relationship or step-children, have you made adequate provisions for them in your will?
If you have vulnerable beneficiaries such as infant children, a child who requires help managing their finances due to a disability or some addiction, or a child with marital problems, have you made appropriate provisions for such beneficiaries in your will?
Noting that your super does not automatically go by your will, have you made the necessary arrangements to ensure the proper distribution of your super to your intended beneficiaries?
Does your will allow for distribution of your assets in accordance with your wishes?
Do you have any guardianship arrangements in place for your minor children (if any) if you pass away?
If you have a self-managed superannuation fund, have you made appropriate arrangements to ensure that the control of the fund is transferred to your intended beneficiaries after your death?
If you have a family trust, have you made arrangements for the control of that trust to be transferred to your intended successors after you die?
Have you considered who will make financial, medical, personal and or lifestyle decisions for you in the event that you lose the capacity to make such decisions yourself?
We have put together a summary of each topic you may need to consider in an estate or succession plan.
A will is a document that records how an individual’s assets are to be distributed to their beneficiaries upon their death. Anyone over 18 years who owns property or other assets, has an interest in superannuation or has family responsibilities should consider having a Will.
Without a valid Will in place, the assets of the deceased will be distributed according to the provisions of the relevant legislation of the state or territory in which they lived at the time of their death – this can be an incredibly expensive and unintended outcome.
A testamentary trust is a trust established under a Will. It does not come into effect until after the will maker’s death. Upon the creation of the trust, the specified deceased estate property is transferred to the trustee of the trust to hold the assets for the benefit of the beneficiaries.
The main benefits of testamentary trusts are their ability to protect assets, enable greater control and reduce tax paid by beneficiaries from inheritance earnings.
Powers of attorney & guardians
Enduring Powers of Attorney and Guardianship appointments form an essential part of estate planning. An individual could lose the capacity to make decisions permanently, such as through dementia or an acquired brain injury from a car accident, or temporarily, by becoming unconscious as a result of an illness.
By putting in place an Enduring Power of Attorney and / or Guardianship documents in advance, the individual is able to specify who can make decisions, and the manner in which these decision are made, for them during times of incapacity. This allows individuals to have greater control over their lifestyle and quality of life during the period of their incapacity.
Superannuation assets form a significant component of your wealth, particularly if insurance benefits are added, consideration as to how the individual’s superannuation death benefits will be treated on their death forms an important part of the estate planning process.
Superannuation death benefits are generally excluded from a will, unless the will maker has nominated that the trustee of the superannuation fund distributes the benefits to the legal personal representative of the individual upon their death. If no nomination has been made, the trustee of the superannuation fund has the discretion to distribute the benefits between the dependants of the deceased and/or the legal personal representative of the individual.
The distribution of any assets held by a family trust is governed by the trust deed of the trust. Although, the trustee of the trust determines how the funds are to be distributed, such trusts generally have an appointor, who has the power of appointment and removal of trustee. This power enables the appointor to effectively control the trust.
The beneficial entitlement in a company rests with the shareholders, with the management of the company handled by the directors. Appropriate provisions should be made to transfer your client’s shares in the company to their intended beneficiaries, thereby transferring their entitlement in the company.
This transfer, subject to the constitution of the company, could be documented via the Will, or alternatively via a shareholder’s or buy-sell agreement in place at the time of death if the Company is trading.
Business exit agreements
If an individual has interest in a business, they may want to consider having a formal succession plan in place to ensure that upon their death, incapacity or retirement, there is smooth transfer of ownership and control of the business and they (or their family members) receive adequate return on their investment in the business.