For many people, a new year signifies a reset button and a chance to put a stronger focus on health, finances, goals, and aspirations for the year ahead. “Getting organised” is reported to be one of the top 10 new year’s resolutions on everyone’s list, especially after the uncertainty caused by COVID-19. Attwood Marshall Lawyers Wills and Estates Partner, Angela Harry, explains how we can help you get your most important legal affairs in order, giving you peace of mind for the year ahead.
No better time of year to get your legal affairs in order
Making sure your future is secure, your loved ones are looked after, and your assets protected can be something you can tick off your new years’ resolution list quickly by engaging an experienced Estate Planning Lawyer who can help you get organised.
There’s no need to kick this task down the road any longer, the process is simple, and you can visit any one of our conveniently located offices to sign your documents once they are ready. Then, that is one more thing you can check off your list!
Whether the new year has seen changes to your relationships, family dynamics, business affairs, investments, or health, ensuring your Will and Enduring Power of Attorney documents reflect your wishes and your current circumstances is imperative. The new year can serve as a timely reminder that you need to regularly review your Will and other legal documents you may have put in place prior to 2021.
To get you started, follow these simple estate planning steps:
Step 1. Dust off your Will
Making a Will isn’t a “set and forget” exercise. It is important to review your Will every year to ensure that it reflects your intentions and everchanging circumstances. This is the time to pull it out of the draw, dust it off, and ensure what is documented is still up to date.
For those who do not have a Will – whether you have been kicking the task down the road or simply feel you don’t need one, here are just a few reasons why you should get organised (there are plenty more in addition to this list!):
- Having a Will ensures your assets end up with your intended beneficiaries, rather than passing under a statutory formula;
- No matter how big or small your estate may be, you are never too “young” or too “old” to make a Will. It is recommended that everyone over the age of 18 should have a Will;
- Contrary to popular belief, your estate does not automatically go to your family after you die if you do not have a Will;
- Failing to have an up-to-date Will can be very costly for your loved ones you leave behind, both financially and emotionally. Even if you do not feel it is necessary for yourself, think about the impact it may have on your loved ones after you are gone;
- Your grandchildren (if applicable) could miss out. When no beneficiaries have been specified, the law of intestacy provides assets pass to your surviving spouse and children, often leaving out the next generation. Having a Will means you can have your say and allocate your assets to go to your grandchildren if you wish;
- If you have minor children, you cannot name a guardian for them if you do not have a Will. Who you want to nominate as your children’s guardian may not be who is chosen after you are gone. If neither parent is alive, the grandparents are the natural guardians of minor children, but it may be up to a court to decide which set of grandparents become your children’s guardian. Who is chosen for your children may not be who you envisaged to be their guardian!
Step 2. Appoint an attorney
Appointing an attorney is one of the most crucial decisions you may ever make in your lifetime. Having an Enduring Power of Attorney ensures that if you lose capacity, whether it be due to an unforeseen accident or injury, or if you suffer from a progressive disease that impairs your memory and cognitive function, such as dementia or Alzheimer’s, then your nominated attorney will have the power to manage your affairs and make decisions for you on your behalf. Your attorney can make financial decisions, which can include preparing a tax return, operating your bank accounts, selling properties you own or taking out a lease, to name a few. An attorney can also make health-related decisions such as granting consent to give or refuse medication, deciding on your living arrangements and helping choose the health services you receive.
In November 2020, changes to Enduring Powers of Attorney laws came into effect in Queensland. What this may mean is that reviewing your Enduring Power of Attorney documents is more important than ever before. It is essential that your documents reflect your wishes and that they are still valid now that changes to legislation have been rolled out.
You do not want to be left in a situation where you have an unforeseen accident or illness, lose capacity, and your attorneys who you have appointed go to step in to make decisions but are turned away because your documents are no longer valid.
It is important to note that the new Enduring Power of Attorney forms impact what types of questions you will need to answer and consequently the responsibilities of the attorneys you appoint.
By reviewing your documents, you will have an opportunity to set out specific views, wishes and preferences, which may have changed since you last drafted these documents. The additional information collected in the new Enduring Power of Attorney forms will provide your attorneys with a more comprehensive outline of your intentions. These important details can assist your attorney when making critical decisions on your behalf.
Step 3. New South Wales residents, it’s time to appoint your Guardian and Attorney (Queenslanders, you can skip this step!)
In New South Wales, there are two documents that can appoint people to manage your affairs, in the same way that Queensland has Enduring Power of Attorney. In NSW, an Enduring Power of Attorney (EPOA) only deals with financial matters, so you will also need to appoint an Enduring Guardian who can then deal with your health and lifestyle matters. These documents work in the same way Queensland’s Enduring Power of Attorney documents do, in that they come into play during your lifetime in the event you lose capacity or are unable to make decisions for yourself. Should the time come you need someone to step in and make decisions on your behalf, you can have peace of mind that you have granted that power to someone that you trust to do what is in your best interests.
You may choose to appoint the same person across both documents to make all your decisions for you, or you can choose to appoint different attorneys to act for health and financial matters.
Once you have your trusted attorney sorted and your documents are up to date, you can have peace of mind in knowing, legally speaking, that someone will always have your back!
Step 4. Consider your superannuation as part of your estate plan
It’s very easy to forget about your superannuation. However, your superannuation may be one of you most valuable assets! Australians hold most of their wealth in their super. It is a common misconception many people have that they can gift their superannuation to a nominated beneficiary in their Will. This is simply not the case, so even though you may have a Will, you may not have dealt with one of your most valuable assets.
To ensure your superannuation contributions and any life insurance (death benefits) go to the beneficiaries you wish to benefit from these assets, you need to complete a Death Benefit Nomination.
A death benefit nomination is a notice that the member gives to the superannuation fund’s trustee regarding the payment of the member’s benefits on death. There are a few different types of death benefit arrangements that can be made. These include:
- Automatic reversionary pension – a pension that is established by the still living fund member. It reverts that member’s benefits to an income stream dependent on death. In most instances it is a pension for the spouse.
- Binding Death Benefit Nomination – the trustee must pay the death benefit as nominated.
- Non-Binding Nomination – the trustee has the discretion to follow the stated wishes of the member or direct the entitlements to another person or the estate.
- Non-lapsing binding nomination – a request by you to the trustee to pay a death benefit to the person/s you nominate which has no expiry date.
- No nomination – if you don’t make a nomination the trustee will pay your benefit to your estate or use its discretion to determine who is eligible to receive it.
Death benefit nominations can be an important tool in succession planning. As you can see, when it comes to Superannuation, there is a lot to consider. It is important to discuss your unique intentions for your estate with an experienced Estate Planning Lawyer so that your estate plan can be completed to reflect your wishes and reduce any risk of anyone making a claim on your estate after you are gone.
Our team can help you understand what documents to put in place and determine if your circumstances require a Death Benefit Nomination in order to protect your assets.
Get organised and save
We want to help everyone get their most important legal documents updated as the new year kicks off.
As a leading estate planning firm, Attwood Marshall Lawyers take a holistic approach to your estate planning needs. Your documents will be prepared by an experienced lawyer who practices exclusively in the area of Wills and estate planning.