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
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
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
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.
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The person named as an executor in the deceased's will has the right to arrange for the burial of the deceased's body.
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