Estate Planning – Guide to Estate Planning in Australia

How to make sure all your personal, financial and business affairs are taken care of when you pass away.

When you’re busy living life, facing up to your own mortality is probably the last thing you feel like doing. However, while it might be an awkward or even painful topic to think about and discuss, making a plan to set out what will happen to your assets upon your death is crucial. This process is known as estate planning.

What is estate planning?

Estate planning involves developing a strategy to deal with your assets and investments when you pass away. Its aim is to provide peace of mind for you and your loved ones when you die, ensuring that your assets are passed on to your beneficiaries in the most simple and effective way.

One of the key tasks of estate planning is preparing a will. Your will provides instructions on how your estate is to be distributed amongst your nominated beneficiaries, but it’s far from the only aspect you need to consider.

A thorough estate plan will also deal with a range of other matters, including:

  • Superannuation death nominations (who gets your super benefits when you die)
  • The creation of testamentary trusts to distribute assets to your beneficiaries
  • Powers of attorney (appointing someone else to conduct your affairs if you are unable to do so)
  • Power of guardianship (giving someone else the power to make personal and lifestyle decisions for you if you lose your mental capacity)
  • Anticipatory direction or advance health directive (instructions on your wishes regarding medical treatment if you’re unable to communicate)

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How do I start estate planning?

The estate planning process can be broken down into a few simple steps:

  1. Take stock of your assets. Create a list of all your personal assets, as well as other assets that form part of your estate (trusts, superannuation, life insurance etc.).
  2. Identify risks. Identify any potential risks you want to plan around before and after your death, such as divorce, mental incapacity or your early death.
  3. Creating a plan. You can now work with your solicitor, accountant and financial planner to work out an estate plan that is tailored to your needs and incorporates all your assets.

For help developing a comprehensive estate plan that covers all necessary issues, it’s recommended that you seek independent legal advice. Your solicitor will be able to help you get started and provide expert advice tailored to your personal needs.

Preparing a will

A will is a critical legal document that outlines your wishes for the distribution of your assets after your death. By creating a clear and unambiguous will you can:

  • Ensure that your assets are distributed to the right people
  • Provide instructions on who will look after your children
  • Establish trusts to distribute assets among your beneficiaries more effectively
  • Donate money to charity
  • Provide instructions for your funeral

If you die without a will or with an invalid will, this is known as dying intestate. When this happens, each state and territory has its own laws regarding how your assets will be distributed. Though those assets will usually be distributed to your family members, this allocation may go against your final wishes.

With this in mind, it’s essential that you create a will and update it regularly to reflect any changes to your legal rights.

Who is involved once I pass away?

When you create your will, you’ll be required to nominate your executor. The executor’s role is to carry out your wishes as specified in your will, and they have the power to administer the estate.

Depending on your personal circumstances, others may also be involved. For example, if you establish a testamentary trust in your will, you will also appoint a trustee whose job is to administer that trust.

Are my assets taxed when passed on?

The tax obligations faced by your beneficiaries vary depending on the assets they receive:

  • Capital Gains Tax (CGT) is only charged on the disposal of an asset, so CGT will not apply to a beneficiary who receives an asset. However, they’ll be liable for CGT if they choose to sell that asset.
  • The tax on superannuation death benefits varies depending on a range of factors, such as whether the recipient is your dependant, and whether the benefits are paid as a lump sum or an income stream.
  • If a beneficiary is entitled to income of a deceased estate, that income is assessable for tax.

For more information on how your assets will be taxed, speak to your accountant or financial planner.

How do superannuation and life insurance work?

As a general rule, superannuation is an asset excluded from your will. Most super funds allow you to nominate who you want to receive your super death benefit when you die. You can:

  • Make a binding nomination. Your super fund trustee must pay your death benefit to the person or people you nominate.
  • Make a non-binding nomination. This provides guidance on who you want the benefit to be distributed to, but the trustee gets the final say on where the money goes.
  • Make no nomination. The trustee decides who your money will be distributed to.

If you hold a life insurance policy outside super that pays a lump sum on your death, the proceeds from the policy will go to your nominated beneficiaries.

How can a will or estate plan benefit me?

There are several important benefits of estate planning, including:

  • Peace of mind. The biggest benefit of estate planning is the peace of mind it provides, ensuring that your hard-earned assets will be distributed according to your wishes.
  • Financial support for the people you care about. By developing a comprehensive estate plan, you can guarantee that your assets go to the right people.
  • Eliminates disputes. A clear will and a good estate plan will help your loved ones avoid arguments, disputes and even messy legal battles about the fair distribution of your assets.
  • Tax-effective. With help from legal and financial professionals, you can distribute your assets in a way that minimises the tax obligations your heirs will face.
  • More than just money. Estate planning is about much more than just dividing up your finances; it also allows you to ensure that you receive the medical care you want, that your children are properly cared for if you die unexpectedly, and even that you’re given the funeral you want.

While estate planning might seem like a morbid and gloomy task, don’t put it off. If you think about it and take action now, you can save your loved ones a plenty of stress and heartache in the future.

Read out checklist for what to review when estate planning

This is an obvious inclusion in estate planning and is usually where most people start. You need to prepare a detailed list of all the physical items that you own that can be deemed as assets. Obvious inclusions are a house, any other property that you own, cars and vehicles, as well as expensive art. However, experts suggest that you should make a list of any physical item that is greater than $100 in value. Hence, you should also list other items such as your laptops and computers, electronic devices such as televisions, home theatre systems etc, as well as an itemised list of all the jewellery that you own.

Once you have listed all your physical assets, you should move on to creating a list of non-physical assets. This includes all bank accounts that you may have; personal as well as business related. If you own shares in any company, then those should be listed too. Along with listing the necessary items, do remember to list the names of the respective banks and companies too, as well as all your detailed account information.

Another vital aspect of estate planning is a review of all your retirement solutions. This includes pensions, superannuation funds, annuities, as well as insurance policies. You need to review each of these in turn to ensure that everything is up to date and all contributions and premiums are being paid properly. You should also check the nominations in each case to ensure that the right people are nominated to receive the benefits upon your death.

Planning an estate is not just about going through your assets and dividing them between your heirs. You also need to make a list of all your liabilities so that they can be dealt with in the right manner from your estate income. Liabilities include any loans that may be pending such as a home loan, car loans, business loans etc. You should also make a list of all your credit cards along with the balances due on all of them. Once you have listed all your liabilities, you need to specify how you want them to be paid off in the event of your death.

Once you have made a list of all your assets and liabilities, you should get a formal will prepared. The distribution of your assets after paying off your liabilities should be clearly mentioned in the will. If you have any special bequests, you can include these in your will too.

This is another vital aspect of estate planning. Since you will not be around to see your Will being carried out, it is necessary to appoint a person as executor of your will. This person will ensure that all your wishes are carried out as per your will. When appointing an executor, you need to choose a person who is responsible and who is extremely trustworthy. It is best to choose someone who is not a beneficiary under the terms of your will.

If you have a particularly large estate, you may want to think about setting up a trust to manage your estate. This can often be the smarter thing to do than creating a will as there is no probate to contend with. You can choose to manage the trust on your own till you are alive, or you can appoint a trustee who manages the trust as per your wishes, upon your death.

Many people nowadays choose to create a document known as an Advanced Medical Directive when planning their estates. This document is a list of medical directions that you want carried out should you become incapable of taking such decisions on your own.

This is another type of legal document that helps in estate planning. A Power Of Attorney is basically a document that gives another person the power to manage your affairs in your absence or if you are medically unfit to do so.

One of the most essential parts of estate planning is proper documentation. Once you have prepared all the lists and documents as mentioned above, you need to sign them properly in the presence of witnesses and then send the documents to your executor or administrator for safekeeping. You should also keep one copy of all the documents with yourself and another copy with your lawyers if possible. In the event of your death, these documents will be used to carry out your wishes for your estate.

A person’s estate is forever changing till they are alive and working, and so is their family. Therefore, you should review all your estate planning documents every few years and update them as and when required. For instance, if a new child has been welcomed into the family, you may want to include that child as a beneficiary under your estate. Hence, by updating the important documents every few years, you can make sure that the plans for your estate always reflect your wishes.

Some questions you might have about estate planning and writing a will

Making a will is very important, particularly if you have assets and wealth, or even belongings that have sentimental value, and would like them to go to particular people. It is also important to have a will if you have particular wishes that you want people to know about after your death, such as wishes relating to your funerals, organ donation, charitable donations, your children, etc.

Although some people think that you have to have a lawyer to make your will, this is not the case. In fact, you do not even need to have special stationery or anything to write one. There are, of course, a few legalities that you have to adhere to in order to ensure that the will is valid. This includes making sure you sign the will, having two witnesses who are not beneficiaries witness your signature and signing the will, and making sure that your will is in written form, whether it is handwritten or typed.

It does not matter if you are ill when you write your will. However, you do have to be of sound mind, which means that you must have the mental capacity to write your will without influence from anyone else. If you are not of sound mind then it is possible that the courts can get involved in helping you to make your will.

You need to choose two people to act as witnesses for your will, as they will need to witness you sign the will and will need to also sign whilst they are both present together. The people you choose cannot be beneficiaries or your spouse/partner. It is also advisable not to choose anyone who is closely related to a beneficiary of your estate.

If you do not make a will and you pass away, you leave an intestacy. This basically means that you have failed to arrange the valid disposal/distribution of some or all of your assets. If this happens, your assets and estate will have to be distributed according to law, which means that you lose any control over who gets what. Those who you wanted as beneficiaries could end up with nothing and those who you did not want as beneficiaries could end up with everything. You also lose the ability to make your wishes known in other important matters such as who should be executor of your estate or what your wishes are with regards to your funeral.

By all means, you can detail your wishes with regards to your funeral in the will. However, bear in mind that if your will is not read until after your funeral this could be a mute point. It is always best to let your nearest and dearest know what your wishes are so that you are more likely to get the funeral you want.

Even if you choose someone to be appointed as guardian to your children in your will, the final say will still rest with the courts. However, if you have chosen wisely and appropriately, the courts are more likely to go with your choice.

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