One positive to emerge from the COVID-19 pandemic is that it has encouraged many people to get their legal affairs in order. However, it shouldn’t take a pandemic for people to identify the importance of proper estate planning! Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, discusses the legal mine field that people can leave behind after they die, and why having a Will and Enduring Power of Attorney is essential for everyone.
Underestimating the importance of proper estate planning at all stages of life
When the first COVID outbreak hit throughout Australia, we saw a huge influx of people wanting to get their Wills and Enduring Power of Attorney documents completed.
It took the threat of COVID, and ultimately the prospect of death, to put these issues front of mind for many people. Many people feel they do not need a Will and Enduring Power of Attorney, or simply have never made it a priority to get the documents done. Some people think they are tempting fate by getting their Will done and avoid it for this reason. The truth of the matter is, we are all going to die. It just depends when our number is up! A favourite saying is ‘you could get hit by a bus tomorrow’.
A Will and an Enduring Power of Attorney are two completely different documents that serve different purposes. A Will comes into play after you die and helps ensure your wishes are fulfilled and that your selected beneficiaries will inherit your estate assets.
An Enduring Power of Attorney applies while you are still alive. This document usually comes into play if you lose the mental capacity to make decisions for yourself (e.g. If you have a stroke or suffer a head injury which stops you from being able to make decisions). By having an Enduring Power of Attorney, you have the ability to legally appoint someone that you trust to act on your behalf if the unexpected happens and you cannot manage your own personal, financial, or medical affairs.
Both documents are extremely important, and everyone should have them in place no matter your age, financial circumstances, health, or family dynamics. Everyone should have them!
Most people underestimate how complex their estate and family structure may be after they die. By the same token, many people assume that a simple Will is going to be sufficient to plan for their future and distribute their assets how they intend to upon their death. Nothing could be further from the truth!
Other than rare exceptions, there’s no such thing as a ‘simple Will’! Everyone should take the time to discuss their unique circumstances with someone who practices in Succession Law and can help structure their estate and draft a Will that truly reflects their wishes, and that will hold up legally, if challenged.
Many young people feel they are too young and have no need for a Will. There is a common misconception that Wills, and estate planning, are only for older generations. These are the same people that have dependent children, blended families, superannuation, stock portfolios, life insurance policies, family trusts, houses and investment properties, cars or even a boat.
If you do not have a Will, it can be extremely messy and complicated for the loved ones you leave behind to manage these assets or take ownership of them.
In the same respect, an Enduring Power of Attorney is just as important, if not more so, as having a Will. These days, people are living longer thanks to innovative medical technology and early intervention. The risk of the onset of dementia, of having a stroke, or even the risk of suffering a head or brain injury in a car or work accident which can impact your mental capacity, are significant and should be planned for in the same way as planning the distribution of your estate after you die.
These are just some of the reasons why an Enduring Power of Attorney is one of the most powerful documents you can put in place in your lifetime to protect yourself and your best interests, and ensure your loved ones have an in-depth understanding of your preferences and wishes.
Why should I bother writing a Will if it can be contested?
In reality, when you get your Will drafted by an experienced estate planning lawyer who can advise you on the best way to structure your assets and pass on your wealth to your loved ones, you reduce the risk of someone contesting your Will after you are gone.
Undoubtedly, Wills that are completed by someone who does not practice in Succession Law and does not have the legal knowledge to identify issues that can arise, open your estate up to a claim being made against it. This is a risk that many people take when taking up the offer of a ‘free Will’ by the Public Trustee. Wills made by Public Trust Officers can be fraught with issues. Not to mention the significant risk many people take by being persuaded by the Public Trustee to appoint them as the executor of the estate.
We have seen firsthand the aftermath of what happens when the unqualified personnel at Public Trust Offices give ‘legal advice’ and appoint themselves as executor in a Will. They charge exorbitant fees and often delay the administration of the estate, ultimately stripping beneficiaries of their entitlements.
The PTO’s Free Will drive is a money making exercise that has been exposed in The Public Advocate Review of Public Trustee fees, charges and practices, which was released earlier this year.
There are also the misunderstood risks people take when attempting to do their own Will online or by using a do-it-yourself (DIY) Will kit. Writing a Will that has not been completed by an experienced, qualified legal professional who practices in this complex area of law can end up causing more issues than the document intended to solve. Common issues we often see that result in estate litigation is when a Will has used ambiguous language, has not dealt with assets appropriately, or has not been executed correctly. These issues and more can leave your family devastated and left to battle the matter out in court.
Every family is unique with different dynamics and relationships to consider. Knowing how to adhere to your obligations for providing for children and other dependents, particularly when blended families are a factor, can be a complex issue to navigate.
You cannot effectively deal with issues such as these by using an online Will, DIY Will kit or taking up the offer of a free Will by someone who is not a qualified legal professional.
Estate planning on a budget – there are alternative options available outside of the Public Trustee
The first mistake you can make if looking to save money and seek a free Will is by entrusting the Public Trustee with the task. Firstly, it is important to understand that at the Public Trust Office you will not be seen by an estate planning lawyer. It is usually an unqualified public servant.
For anyone on a budget and looking for an alternative option to ensure they have their most basic legal documents up to date, there are Community Wills Days that take place throughout the year which are associated with local charities.
By taking part in a Community Wills Day, you can book an appointment with an experienced estate planning lawyer who has donated their time to help you draft a legally binding document whilst also supporting a worthy cause. The appointment booking will cost you a nominal booking fee only, with that entire fee going directly to the charity associated with the event.
This is a wonderful opportunity to support a charity you feel strongly about whilst also getting your legal affairs in order and updating your Will with the advice of an experienced estate planning lawyer.
Attwood Marshall Lawyers have been partnering with many hardworking and deserving charities for years to host Community Wills Days. The charities we are proud to partner with include:
- The Salvation Army
- Australian Cancer Research Foundation
- Westpac Rescue Helicopter Service
- Currumbin Wildlife Hospital Foundation
Many people also take the opportunity to find out how they can leave a bequest to their chosen charity in their Will when attending a Community Wills Day. There are a number of ways you can leave a gift to charity in your Will, and an experienced estate planning lawyer can help you identify the best option that suits your estate plan, and how to word and structure this gift in your Will.
Attwood Marshall Lawyers have also launched a new initiative in August 2021 offering first responders and frontline health workers a free Will, completed by one of our experienced lawyers. There are no strings attached. This initiative was launched as our way to say thank you to first responders and frontline health workers for the sacrifices they make every day and for always doing their bit to help the community and save lives. Their jobs are extremely demanding and challenging, particularly during the pandemic, and this is just one way we want to give back and help people.
Attwood Marshall Lawyers are passionate about spreading the word about Wills and proper estate planning
Wills are the major component for later life planning, in conjunction with Enduring Powers of Attorney and Advance Health Directives, which are even less commonly used than Wills, but just as important!
According to the Australian Bureau of Statistics, one Australian dies every 3 minutes and 13 seconds. It’s an alarming statistic! And with roughly only 50% of Australians having an up to date and legally-binding Will, there is a significant amount of education that needs to be done to ensure everyone understands how estate planning applies to them and their unique circumstances.
Most people do not hesitate to take out insurance for their home, business, or car, but yet there appears to be an alarming hesitation to write a Will and Enduring Power of Attorney to protect themselves, their loved ones, and their assets if the unexpected happens.
Our lawyers take great pride in building rapport with their clients so that they can gain insight into what matters most to them, and how they can help them plan for the future and preserve their wishes.
With one of the largest Wills and Estates Departments in Australia, we want to make it as easy and cost-effective as possible for everyone to have their most basic legal documents in order.
If you need assistance drafting a Will, Enduring Power of Attorney, or simply want to better understand what documents you should consider to suit your personal circumstances, contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email firstname.lastname@example.org or free call 1800 621 071 any time.