A Will is a legal document that sets out how your property is to be divided after death. To make a valid Will, you must be over 18 years of age. The Will should be in writing and set out your specific wishes. You should sign your Will in the presence of two witnesses.
Making a Will is not just for the elderly or the wealthy. You should make a Will even if you think you have little to leave. If you do not make a legal Will, your estate will be distributed in accordance with a formula determined by the government. It is important to protect your life’s work and your family upon your passing.
Under the Will, an executor is appointed to look after your estate. The executor’s role is to:
- Determine all your assets;
- Pay all your debts; and
- Distribute your estate in accordance with your Will.
The executor is usually a trusted family member or friend, but can be anyone you trust to look after your affairs.
You should review your Will regularly. Your Will should be reviewed:
- If you have more children;
- If you separate, divorce, re-partner or re-marry. If you get married, your Will is revoked (i.e. it is no longer valid) unless the will states it is made in contemplation of the marriage;
- Whenever you sell or acquire significant assets, such as property;
- If any executor dies or becomes ill; and
- If a beneficiary dies or has a change in circumstances including a family law dispute.
POWER OF ATTORNEY
This a legal document that allows another person to make decisions about your personal or financial matters whilst you are still alive. It may allow a person to make decisions whilst you are travelling overseas or otherwise unavailable.
An “Enduring Power of Attorney” allows a person to make decisions for you whilst you are still alive, but have lost the mental capacity to understand the nature and effect of decisions yourself, or communicate your decisions effectively. For example, an Enduring Power of Attorney can be used if a person has dementia, or suffers a brain injury following a serious accident.
One or more attorneys can be appointed and you can nominate whether they can act individually, jointly or in the order named in the document. A Power of Attorney ceases when you die.
SUPERANNUATION DEATH BENEFIT NOMINATIONS
After your death, superannuation is not necessarily passed onto the beneficiaries of your Will or the beneficiaries named under your superannuation policy. In fact, there are three types of nominations that occur via your superannuation:
- Trustee Discretion – This is where your superannuation Trustee decides which dependents or beneficiaries receive your superannuation.
- Lapsing Binding – This occurs where the beneficiary nomination you make is binding on your superannuation Trustee, but only for a set period of time (e.g. three years).
- Non-Lapsing Binding – This occurs where the beneficiary nomination you make is binding on your superannuation Trustee until it is changed by you. This means your superannuation Trustee has no discretion to pay the benefit to another person.
You can nominate your estate as the beneficiary of your superannuation under a binding nomination; however, unless you do this, your superannuation does not fall under the provisions of your Will.
Contact Jim Reaston who is experienced in dealing with deceased estates and can take the hassle out of dealing with a loved ones’ assets following his or her death.
Contact our team today for advice on drafting your Will, a General or Enduring Power of Attorney, and any concerns regarding an Estate.