The holiday season is traditionally a time for families to get together and more often than not, a time to take stock of family relationships and any issues that may have surfaced during the year.
In this edition our team report on estate planning discussions you might have with your family as you plan for the year ahead.
The Carroll & O'Dea Wills and Estates Team
- Do you have a Will?
A Will comes into effect after your death. It can be updated as many times as you wish while you are alive, but it is the most recent (the "Last" Will) which determines how your assets will ultimately be distributed.
It is true that even without a Will your assets will be distributed, but this will not be based on your wishes. Instead, they will be distributed in accordance with pre-defined gifting provisions contained in the Succession Act 2006 commonly referred to as the rules of intestacy.
- Does your Executor know you have appointed them?
We highly recommend that before you name an Executor in your Will, you ask them to agree first. If you didn't do this before signing your Will, make an effort to tell them now. Make sure your Executor is in a good position to take on the responsibility, that they understand what being an Executor involves and that they are someone you trust who has a reasonable idea of your affairs and wishes. If you are considering reviewing your Will and don't know who to appoint as an Executor, there are third party providers who offer this service e.g. NSW Trustee & Guardian.
- Where is your Will located?
It is not uncommon for people who have a Will to be uncertain of its location. If you have taken the time to prepare a Will, also take the time to tell your Executor (and alternate Executor) where it is kept. It is important your Will is kept somewhere safe but it is also important that it is accessible at the appropriate time. For example, is it at your home, your lawyer's office or at your bank? As part of our estate planning service, we offer to hold our clients' original Wills in our strong room at no cost.
- When did you last review your Will?
The break from work approaching is a great time to think about creating a Will, or reviewing one that is already in place.
If your family circumstances have changed through marriage, divorce, birth of a child, or death of a relative, your Will might need updating. It makes sense to review your choice of guardian for any of your children who are minors, make sure that you have chosen the most appropriate person to serve as Executor and take another look at your beneficiaries. Likewise if your business situation has changed your Will should be considered in that light.
- Do you have an Enduring Power of Attorney and Appointment of Enduring Guardian?
New Year's resolutions are often made in the areas of healthcare and financial wellbeing and these are the very areas addressed by a complete Estate Plan.
An Enduring Power of Attorney allows you to appoint somebody to make financial decisions on your behalf.
An Appointment of Enduring Guardian allows you to appoint somebody to make health and lifestyle decisions on your behalf (but only at a time when you are a person in need of a guardian i.e. if you, because of a disability, are totally or partially incapable of managing your own person).
Along with eating a healthier diet and working out, it should be a resolution to get an Enduring Power of Attorney and an Appointment of Enduring Guardian.
- Were you a beneficiary in 2016?
2016 may have been a year when a friend or relative died, and this can often lead to a discussion about their estate and how their property was distributed.
If you are a beneficiary, you:
- have the right to view the accounts of the estate;
- have the right to object if the Executor is not carrying out the wishes of the deceased as provided by the Will;
- do not have the right to question decisions of the Executor simply because you may not agree with them; and
- do not own any property gifted to you under a Will until the Executor distributes the estate and formally transfers it to you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
