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Estate Planning – FAQs .


Who should be my Executor?

Anyone you trust to look after your affairs when you die.

We normally recommend that the people benefiting under the Will should be the Executor. For example, if Fred and Mary leave everything to each other, then their three children, Fred and Mary should be executors of each others wills at first instance. If they both die, then the children should be executors if they are of age.

What Age should my Children/Grandchildren Inherit?

There is no set rule. You nominate whatever age you are confident that they are able to look after their affairs without any supervision. If you have doubts that your 21 year old son will not splurge your inheritance on a brand new Porsche to impress his girlfriend, the age of majority should be at least 25, maybe older. If by contrast you have a 19 year old son or daughter who is very good with their money, 18 may be an appropriate age.

As a comment, in days gone by, 18 or 21 was the common age of inheritance. These days more people prefer to specify ages between 25-30. Some people even do a staggered inheritance, eg. 50% at age 25. 50% at age 30.

You can even put in a clause restricting the discretion of the executor to give you the money, eg. the specified age of inheritance may be 25, subject to the executor having a discretion to extend this age if your son or daughter is an alcoholic, drug addict or spendthrift (wastes money).

Who should be the Guardian of my Children?

As a preliminary comment, this decision rests in the hands of the Family Court.

However if you include a clause in your Will, the Family Court takes your wishes strongly into account in making the decision as to who will be the guardian of your children. The younger your children, the more likely that the Family Court will follow your express wishes in your Will.

I have a disabled child. What do I do to ensure my child’s special needs are taken care of?

The needs of a disabled child are very sensitive and delicate. Properly structured trusts (capital protected) need to be created, and is something that we can do for you.

It is also important to select an executor that truly understands the needs and intricacies of your disabled child. Preferably someone you and your child knows well, rather than an impersonal government official.

My nasty ex-spouse wants to take everything that I have. I am concerned that my nasty ex-spouse (and my oldest son from that marriage who hates me) will challenge my will. What can I do?

We can include a “considered person” clause into the will to significantly reduce their changes of successfully challenging your will.

Or if necessary we can shore up your estate to make it impenetrable, ie. by setting up special trusts whereby the assets are protected in special inter-vivos trusts outside your will.

Do I really need a Will? What happens if I die intestate?

If you don’t have a Will, the government legislation will specify who gets your estate.

If you have children, you will NOT get 100% of your partner’s estate. You will only get 75% in Western Australia (for example). Most other States are the same.

Financial certainty is about empowerment. You should decide who gets your assets and in what proportion. Not a piece of government legislation that can be changed at whim.

What happens if someone challenges my Will? Who can challenge my Will?

In NSW anyone can challenge your Will (not quite anyone, but almost anyone!).

In Western Australia, the following people can challenge your Will:

  • your spouse
  • your de facto if you were maintaining them and the court has the view that you have special moral responsibility to make provision for them
  • your ex-spouse if they were receiving (or were entitled to receive) maintenance payments at the time of your death
  • your child or grandchild, or an unborn child or grandchild who has been conceived

Step children are NOT included, ie. they cannot challenge a will.

To challenge a Will, a person has to apply to the Supreme Court. They have to show that they are entitled to challenge, and they have to demonstrate why they consider themselves entitled to a larger share of your estate, and why the will does not adequately provide for their maintenance, support, education or advancement in life.


Powers of Attorney

Who should be my attorney for a Power of Attorney?

Essentially anyone you trust to look after your affairs and sign documents on your behalf.

If you are married or de facto, you may want to make your partner power of attorney to sign documents on your behalf. If you are away overseas this can be valuable.

Ultimately it must be someone your trust. Although there are strict rules on attorneys (they can go to jail if they fail to act in your best interests), it is better not to go through that ordeal in the first place. Be careful who you choose.

What about a back up attorney if both me and my spouse get sick or injured?

If you are married or de facto and both you and your partner become incapacitated, it is important to choose someone that you trust to be your attorney. You will need someone to be able to sign documents and access your bank accounts to ensure that your expenses are paid, and if you have children, ensure that their financial needs are met.

The most important criterion is that the person be somebody that you trust and that understands your affairs. If you know no such person, then you should choose an accountant, lawyer, financial adviser or the Public Trustee, ie. an impartial external party who objectively looks after your interests, and is subject to strict legal accountability.

What are my duties as an attorney?

Essentially you must sign documents in the best interests of the person you are attorney for. So if you are attorney for your wife, then you must sign and release finances in her best interests.

There are strict rules on attorneys. You can go to jail for misappropriating funds, or not acting in the best interests of your principal. So make sure you handle your affairs diligently and with full accountability.

How do I find out more?

[su_panel background=”#e8e8e8″ color=”#187DA1″ border=”#187DA1″]Contact us today to discuss your estate planning needs. You can either contact us on 1300 669 336 or click here to organize a free consult no obligation.[/su_panel]

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