A basic estate plan should have 3 essential documents including a Will, Power of Attorney and Enduring Guardianship. As you can see from the diagram below, a Will covers your assets in the event of your death whereas the Power of Attorney and Enduring Guardianship cover your affairs in the event of your incapacity. All three documents are equally as important given they cover off on different scenarios. More information on each document is outlined below.

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Will (distribution of assets upon death)

A Will is a legal document by which a person, the testator, expresses his or her wishes as to how their assets are to be distributed after their death.

A Will names one or more persons to manage your estate until all the assets are distributed (this is the executor). It also nominates who you would like to receive a gift or benefit from your estate (the beneficiaries). This ensures your assets pass to the beneficiaries of your choosing upon your death.

A Will may also name one or more persons to care for and make decisions in relation to your children in the event of your death (this is the guardian). This is an important appointment as it allows you to legally appoint someone to look after your minor children.

If you do not have a Will, upon your passing an interested person (usually a close family member or friend) can apply to become the administrator of your estate. This process is often time consuming and strenuous on your family/friends during a time of grief. Therefore, having a Will prepared during your lifetime will greatly benefit your family/friends.

Power of Attorney (Legal & Financial decisions)

An Attorney deals with the legal and financial affairs on behalf of the person that grants the Power of Attorney (the Principal). An Enduring Power of Attorney will continue to be effective even after you lose capacity.

The Principal can elect to have the Attorney act immediately (i.e. before they lose capacity) or only once a medical practitioner considers they are unable to manage their own affairs.

This is an important document to have in place as without it no one is able to manage your money and assets on your behalf if you lose capacity.

If you do not have a Power of Attorney in place and you lose capacity, a close relative or friend may apply to the Guardianship Tribunal to become your financial manager.  This process is costly and time consuming and can be avoided by simply putting in place a Power of Attorney while you are mentally capable.

Enduring Guardianship (Medical & Lifestyle decisions)

An Enduring Guardian deals with the medical and lifestyle affairs on behalf of the person that grants the Enduring Guardian (the Principal), once that person becomes partially or totally incapable of managing their own affairs. This includes where they live, heath care that they receive, dealing with doctors etc.  This power will only operate if you become partially or totally incapacitated.

This is an important document to have in place as without it no one is able to make medical and lifestyle decisions on your behalf if you lose capacity.

If you do not have an Enduring Guardianship in place and you lose capacity, a close relative or friend may apply to the Guardianship Tribunal to become your guardian. This is a similar process to an application for financial manager as discussed above.  As such the time and costs of this process can be avoided by simply putting in place an Enduring Guardianship while you are mentally capable.

At Southern Waters we aim to simplify these documents for you so you can easily understand the contents and importance of each document.

We encourage you to contact our office if you are interested in putting in place these documents or wish to discuss further.

Previously it was common practice for individuals with assets in Australia and overseas to prepare a Will in each country where they held assets. This was to ensure the requirements for a valid Will were met in each country given differences in rules between countries.

To overcome this, Australia became a party to the International Wills Convention which came into effect in Australia on 10 March 2015.

This convention seeks to harmonise and simplify the requirements for a valid Will across countries by introducing what is known as an ‘International Will’. While the requirements for an International Will are very similar to a valid Will in NSW there are a few key differences.

The similarities are:

  • it must be in writing;
  • it must signed by the Willmaker;
  • it must be witnessed by 2 witnesses; and
  • the Willmaker must know the document is his/her will and the contents of it.

The differences are:

  • An ‘Authorised Person’ must sign the International Will as a 3rdwitness. An Authorised Person means an Australian legal practitioner or a public notary of Australia. This is not required for a valid Will in NSW.
  • The Authorised Person must execute a Certificate stating that the obligations of the Convention have been complied with and attach this to the International Will. This is not required for a valid Will in NSW.
  • An International Will requires the Willmaker and all 3 witnesses to sign every page of the Will – while this is common practice in NSW it is not a legal requirement.

An International Will can be a cost effective and efficient way to have a Will drafted that covers your international assets.

Countries that are currently parties to the Convention alongside Australia include USA (only some states), United Kingdom, Canada, France and Italy. For a full list of countries please visit this link.

If you would like more information on this please do not hesitate to contact one of our estate planning solicitors on (02) 9523 5535. We can also assist with any enquiries relating to creating a Will that covers assets in any countries that are not a party to the Convention.

What do you think?

We would love to hear your thoughts! Feel free to submit your comments below or comment on our Facebook Page or LinkedIn.

Even though a Will is one of the most important documents you will ever sign, current statistics show that almost one in two Australians do not have a valid Will. According to the NSW Government, 55% of Australians have a valid Will. Of the remaining 45%, some have no Will at all and others have a Will that is not up to date.

A Will is a legal document and it is a statement of your wishes that are to be executed when you pass away. When you write a Will, you appoint an executor who will oversee the processes of distributing your estate in line with your wishes.

The assets you leave behind can hold both financial and sentimental value, and you may want specific items to be inherited by a certain family member or friend. Because a Will allows you to list individual people and assets, there is the opportunity for you to allocate an inheritance to children from previous relationships, as well as to friends and charities.

How can a solicitor help?

It is a good idea to involve your solicitor whenever you want to make changes to your will or draw up a new one. Your solicitor can:

  • Make sure your will is valid and that it is properly drawn up, signed and witnessed
  • Make sure you have expressed your wishes in the best possible way, so nothing is left to chance
  • Advise you on how to provide for your spouse or de facto partner, children and other dependents. They will also let you know about your rights and obligations to former partners and others
  • Advise you on tax planning, including the best way to minimise any potential capital gains tax from the gifts you are making
  • Give you a thorough understanding of the role of your executor and trustee and help you choose appropriate ones
  • Advise you on the best way to arrange your estate
  • If you have worldwide assets, give you advice on international wills
  • Advise you on assets that you control but will not form part of your estate, and
  • Store your will in a safe place so that your beneficiaries always know where it is kept.

If you don’t have a current Will or would like to update your current Will (Estate Planning, Powers of Attorney etc) contact Simon Bennett or Camille Evans today where we will guide you through the process.

What do you think?

We would love to hear your thoughts! Feel free to submit your comments below or comment on our Facebook Page or LinkedIn.

It’s in our nature to look out for our loved ones and one of the most valuable assets you will ever ‘own’ is your education.

So it’s not surprising that we receive a number of calls from people wishing to somehow pay for the future expenses of their child or grandchild’s education, in the event of their passing.

Unlike cash, cars or material ‘things’, the gift of education is one that could make a profound difference in your grandchild’s life.

So how can you ensure they’ll have their costs covered – rain, hail or shine?

The answer is rather simple – you set up an education fund for your grandchildren in your Will, through the vehicle of a Testamentary Trust.

Testamentary Trusts created by a Will not only facilitate the provision of your grandchildren’s education fund; they also offer significant tax savings on your inheritance. A win all round!

What is Testamentary Trust?

A Testamentary Trust is a Trust established by a Will. It only comes into effect after the death of the Will-maker.

Can I ensure that the funds can only be used for education or the benefit of my grandkids?

Yes – You tell us how you would like the funds in the education fund paid and we can accommodate this when drafting your Will.

What are the benefits?

There are lots of benefits having a Testamentary Trust Will:

  • Significant tax benefits and savings – at time tens of thousands of dollars can be saved!
  • Flexibility for beneficiaries – each grandchild is different!
  • Asset protection – Protect your inheritance from unwanted beneficiaries or claims.

It is complicated?

We will assist you to understand and draft your Testamentary Trust Will. That is what we are here for! Many of our clients who complete their Testamentary Trust Will are surprised by the simplicity of the process and delighted with the resulting peace-of-mind.

How do I start?

Contact our Estate Planning solicitors, who will be more than happy to clarify your situation and the next steps.

Homemade Wills are a curse” – This was the opening remark in a recent judgment of an Australian Will dispute case…

At Southern Waters Legal we agree! Unfortunately we see first hand the expensive mess left behind when people attempt a DIY Will. Homemade Wills often cause significant delays in beneficiaries receiving their inheritance, drawn out expensive litigation and family disputes.

The judgment continued:

  • “All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes; and
  • There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent”

One of the most famous examples of this issue was the disaster that arose after racing car driver Peter Brock attempted his own DIY Wills.

Why should you seek proper Estate Planning advice?

  • Ensure that all your assets are distributed and protected as per your wishes. Did you know that your Will does not automatically covered your superannuation?
  • Strict formalities must be met to ensure a Will is validly executed. Did you know witnessing a Will as a beneficiary may exclude you from benefiting under the Will?
  • Have control over excluding certain people from inheriting from your estate. Did you know there are steps you can take to reduce a successful claim against your estate?
  • Make informed decisions about your Estate Plan. You will make informed decisions about your Estate Plan once you have received proper Estate Planning advice.
  • Avoid costly litigation and delay. A person could have several Wills professionally prepared for a fraction of the cost that could be imposed on their estate in the event their DIY Will is unclear, incomplete or challenged.

Seeking proper Estate Planning advice from an experienced Estate Planning solicitor together with a professionally drafted Will gives you peace of mind knowing that your family does not need to deal with the curse of the DIY Will.

If you do not have a current Estate Plan or would like to update your Estate Plan (Wills, Powers of Attorney etc), contact Southern Waters Legal today – we will guide you through the process.