| Structure and Estate Planning, Administration and Litigation | |
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DEATH - It’s a dead giveaway... make or review your will before it’s too late! Who gets what is up to you. Stop! Consider! Do you have a Will? If so, when did you last review it? Making a Will is the sort of thing one is inclined to “put off until later”. It’s not seen as a priority because most of us don’t want to think about dying. Face it, it’s one of the two things we can be certain about in life. The other is taxes.
Sound familiar? Did You Know? Having a Will is extremely important. It is a means of ensuring as far as possible that on your death, any assets you possess are distributed as you would wish. Without a valid Will, you are said to die ‘intestate’. This can result in your estate going to persons that you may not wish to benefit. Even if you have little in the way of assets you may have young children. At the very least, you can appoint a guardian in your Will to care for your children if both parents die. Your children may face difficulties without a legally appointed guardian, as guardians are required for educational, health and legal matters. It may also result in conflict in your family as to who will care for the children. It is important to have a Will drawn whilst you are well and healthy. Making a Will whilst you have the mental capacity to do so means that it will be valid and binding even if at a later date your mental capacity is affected by an accident or disease. If you attempt to execute a Will when you are incapacitated the will may be challenged and declared invalid. A recent high profile example of the problems you can cause your family by not having your Will in order is the litigation over the estate of the late Peter Brock. Brock left three Wills, the first made by a solicitor, and two later Wills, one in 2003 and the other in 2006. Both the later Wills were made using will kits and neither was completed correctly. In the 2003 Will, he appointed an executor, signed the form and got one person to witness it. He told his then partner, Bev to fill out the rest with respect as to who was to receive his estate. This was never done. In the 2006 Will he made provision for his new partner, Julie Bamford but never signed the Will. The Court found the 2003 Will to be valid as it had been signed by him and had at least one witness. However as it did not dispose of his estate, then his estate had to be distributed under the intestacy rules. Brocks two children would therefore share in the estate. His partner, Julie received nothing and is now appealing the decision. Brock also raised Bev’s son, James (a child from a previous marriage) and treated him as his own. His two natural children agreed to include James, but if they had not done this, he would have received nothing. One has wonder what will be left of the estate once the litigation is concluded and whether the result will be what Brock would have wanted. Make the effort to prepare a Will. It will save your family from emotional trauma at a time which is already distressing. Even if you have a Will, you should review it regularly. Many people are surprised to find that not all of their assets will form part of their estate and be dealt with by their Will. For example, superannuation (which is something just about all of us have these days) does not necessarily become an estate asset. This is because the fund is under the control of a trustee and you are merely the beneficiary. On your death, the trustee has the discretion to determine who will receive your entitlements. There is a limited class of beneficiaries that the trustee may by law consider. It may be that your Will does not fit with your current circumstances.
As part of your estate planning you should also appoint a person who can act for you as your attorney in the event that you are no longer able to make a decision yourself. It is important to have this document in place before you become incapacitated as you are then unable to appoint an attorney. This can result in the Adult Guardian becoming appointed as your attorney or, at the very least, making the decision as to who they consider is the appropriate person to act as your attorney. In the meantime, who will pay your bills and make decisions about your care. Don’t put it off. Make an appointment to discuss your estate planning needs with one of our team today. your situation. Get started today with a will, submit an online Wills and Estate checklist. Partner
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I’m not old
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