Top tips from our Will and estate planning seminar
Posted: Tuesday, 17 October 2017
It is important to plan ahead now, while you are healthy, aware and in control. Unfortunately, without any plans in place, a court or tribunal may need to appoint someone to make decisions for you. Your estate will be distributed according to State law, which can be a costly process and not necessarily in the way that you may have wanted. This process can, of course, cause additional emotional and financial distress for your family and loved ones at an already difficult time.
What is Estate planning?
What you need to know about Wills
A Will is a document that states how you would like your assets to be distributed when you pass away and the person/organisation (known as your executor) you would like to be responsible for carrying out your wishes. Even if you do not think you have many assets, you still should have a Will and documented plans.
Make sure you get professional estate planning advice – do not use a generic do-it-yourself ‘Will kit’ or rely on the supposed good intentions of others. If you are not legally qualified to prepare a Will, then you risk making mistakes, creating uncertainty or losing opportunities for good estate planning. This can result in unnecessary costs and delays in administering your estate. It is easier and cheaper to ensure that your Will is correct whilst you are alive, than have your executor try and fix it after you die!
If you already have a Will - make sure your Will is up to date – we recommend that you review your Will every 3 to 5 years, or as your circumstances change.
What you need to know about the role of the Executor
An executor is responsible for the entire administration of an estate and for carrying out the wishes in accordance with a Will. Some of the responsibilities of the role of an executor are to locate the original Will, arrange and pay for the funeral, apply for a grant of probate and act on any special instructions from the deceased.
Being an executor can be a complicated job and requires legal and financial understanding to do it successfully. That’s why many people prefer to appoint professionals such as the Public Trustee, rather than leaving the difficult task to their loved ones.
If you have been named the executor of a Will you are under no legal obligation to accept this appointment. If you do not want to take on this role, you can renounce your responsibility to the Public Trustee.
What you need to know about enduring powers of attorney
An enduring power of attorney is a legal document, which allows appointed individual(s) or organisations (known as your attorney) to take care of your financial affairs.
If you lost capacity due to an accident, illness or the onset of an age related disability, you may lose the ability to operate your bank account, pay bills, sell property or deal with any of your financial affairs. By preparing an enduring power of attorney it ensures you, your loved ones and your property are protected. It is important that you choose an attorney now, while you have the capacity to do so.
Until your enduring power of attorney is registered with the Land Titles Office, you will maintain full control and independent financial control. However, you can have peace of mind knowing that in your time of need there will be immediate access to essential assistance.
An enduring power of attorney is operative during your lifetime only (unless declared bankrupt) and automatically ceases when you pass away.
What you need to know about the role of the attorney
Appointing an attorney gives responsibility to do anything with your property or finances that you could do yourself. These broad and general powers include selling property, managing investments and shares, and accessing cash to pay bills. An attorney is an important position of trust and has a responsibility to always act only in your best interests.
Acting as an attorney is a demanding job filled with wide ranging responsibilities. It requires a good working knowledge of legal, business, financial and investment matters. It may be unreasonable to ask a friend or relative to take on this role. That is why many people choose to appoint the Public Trustee as their attorney.
What you need to know about enduring guardianship
An enduring guardian is a registered document that allows you to appoint an individual/ or individuals (known as your guardian) to make decisions about your health and wellbeing if you are unable to make those decisions.
Your enduring guardian may make decisions such as where you live, what services are provided to you at home and what medical treatments you receive.
Enduring guardianship only comes into effect if or when you lose capacity and will only be effective during that period of incapacity. Therefore, it may never become operational. Regardless, it is important to plan for the future, particularly for unforeseen situations. Your enduring guardianship document must be registered for it to be valid.
What you need to know about the role of a guardian
Your enduring guardian can make decisions about your health care and accommodation requirements. This includes medical treatment, whether you live in your own home or a nursing facility, who can visit you or what personal services you receive for example, home support or meals on wheels.
Your guardian must be over 18 years of age and cannot be a person who you are involved with in an administrative or professional capacity e.g. your GP. You also cannot appoint the Public Guardian or Public Trustee as your enduring guardian.
Your guardian should be someone you trust and who knows your wishes and preferences. They should preferably be a person who is decisive and able to advocate on your behalf to medical staff, care providers and members of your family.
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