Beyond The Will: Do You Need Comprehensive Estate Planning?
Written by: Karlene Wightman | Legal Team
Many people do not consider the many facets involved in preparing a Will. It is sometimes the case that clients are surprised by the personal and in-depth discussions required when taking instructions. At Canny Legal, we ensure that we ask all the necessary questions to determine whether comprehensive estate planning is required.
What Legal Information Is Asked?
At your initial Will appointment, many questions need to be asked, sometimes mundane and sometimes more personal.
Personal Details
Initially, we need to gather your personal information. While this seems quite straightforward, one issue that sometimes arises is your correct legal name. In some cases, people use their middle names, variations of their first name, spelling of their names that do not match their birth certificate and the like. A Will needs to cover all these names so that there is no confusion when a person dies.
Blended Families
Despite how you choose to structure your Will, it is essential for your lawyer to know whether you have a ‘blended family’.
While the structure of your Will may remain the same, advice surrounding blended families, asset structures and how this could affect your intentions can be critical to understand.
One example that often surprises people is the family/matrimonial home, and that just because both names are on the Certificate of Title does not mean that each person owns ‘half’ and can therefore gift half to whoever they wish. This is where advice and estate planning are extremely important.
Want to know about blended families and how this can affect your Estate Plan? Check out this previous blog we put together: Estate Planning for Single Parents.
Children (Stepchildren + Estranged Children)
Relationships with family, particularly children, can be complex. No matter what your intentions are in relation to your Will, it is important that all children (including stepchildren, adopted children or foster children) are disclosed. This is because of legislative obligations regarding children, which many people are not aware of.
It is also important to know any pertinent information or circumstances that relate to your children, as this can affect your estate planning. One important example would be if a child or beneficiary has a disability that would limit their ability to handle their own affairs.
Want to know more about how important children are when it comes to your Estate Planning? Check out this previous blog we put together: Does My Stepchild Have A Right To Claim On My Estate?
Asset Details
When providing advice in relation to how to structure your Will, obtaining an overall picture of your assets and your wealth is extremely important. Things to consider include:
- What property do you own, whether it be your principal place of residence, an investment home or a block of land? As noted above, it is important to understand how this property is held (sole name, join proprietors or tenants in common);
- How many bank accounts are held and how they are held (joint or individually);
- Any investment that you may have (term deposits, bonds and the like);
- Any individual shareholdings or share portfolios and whether they are held individually or jointly;
- Any separate life insurance and who is the nominated beneficiary;
- Who your superannuation is held with, including any self-managed superannuation. It is also important to understand to understand the nomination process and whether it is a non-binding, binding or binding non-lapsing nomination and who you have nominated;
- Details of any companies and family trusts;
- Any valuable personal property such as motor vehicles, caravans, jewellery and the like.
It is important to think carefully about all the above and provide as much detail as possible because the answers can shape the structure of your Will and trigger discussions regarding further estate planning.
Do I Need Comprehensive Estate Planning?
Whether you need comprehensive estate planning will be decided based on all the above questions and the answers provided. Whether you need to receive estate planning beyond a Will or have a more complex Will, is not only based on significant wealth. Comprehensive estate planning is needed for a variety of other circumstances, including:
- Wealth: Individuals with significant wealth undoubtedly want to protect their wealth for future generations. Often ‘farming families’ who have worked on the land for generations are particularly interested in ensuring that their family legacy continues.
- Spouse/Partner/Child with a disability: When a family member who is being provided for in a Will has a disability (either physical or intellectual), it is often the case that extra considerations are required. It may be that the beneficiary will qualify for a special disability trust, or that a testamentary trust is the best way to proceed. These options would be discussed at the time.
- Beneficiaries who are at risk of wasting their inheritance: Examples of these circumstances are people who are under the influence of drugs and alcohol, have a relationship at risk of separation or are generally irresponsible.
- Beneficiaries who are directors of companies: When a beneficiary is a director of a company, structuring your Will in the correct manner can be of significant importance.
The above are only examples of situations where more comprehensive estate planning may be required. However, as noted above, it is critical that open communication are had at the initial Will appointment so that your lawyer can determine what needs to be dealt with.
What About Superannuation?
Superannuation is an asset that falls out of the estate unless you direct it to be paid into the Estate. To this end, you need to complete a ‘nomination’ which directs how to deal with your superannuation. There are three types of nominations:
- Non-Binding: This means that the beneficiary nomination is simply an ‘expression of wishes’ and the determination is to be made by the superannuation company.
- Binding Nomination: This means that the superannuation company must honour your nomination, as long as it falls within the superannuation rules. The nomination needs to be updated every 3 years.
- Binding Non-Lapsing: This means that the superannuation company must honour your nomination and that until you change it, the beneficiaries will not change.
It is very important to discuss what the best approach is. There are generally two options:
- Nominate individual beneficiaries. This can only be done if the person is a spouse or child under the age of 18 years.
- Nominate the Legal Personal Representative (being the Estate). Your Will then directs how the superannuation is to be distributed.
Whether you need comprehensive estate planning or not, it can be a ‘minefield’. The most important thing to do is attend an appointment to make a Will and have open and honest communication with your lawyer. The rest will take care of itself.
Canny Legal + Your Estate Plan
Estate Planning, or as we like to call it here at Canny Legal, ‘life planning’ is an essential piece of the puzzle that is life!
Canny Legal’s lawyers help you manage and control assets both while you are alive and after your death. We do this through a number of avenues including drafting your Will, drafting your Powers of Attorney, assisting with Binding Death Benefit Nominations and the preparation of Family Trusts.
Get in touch with our team to ensure that you receive expert advice on your Comprehensive estate planning and let us take the stress off your hands!
