Australia: Can you set and forget your estate plan?

A well-crafted Estate plan can be flexible enough to work for a number of years. It can be drafted to have "one eye on the present" and "half an eye on the future". But even the best laid plans can be undone by the unforeseeable. So what could prompt you to review your Estate plan?

  1. You have married or divorced since you last did your Estate Plan.
  2. Your asset structure has changed, for example, you have:
    • received an inheritance or a windfall;
    • sold or acquired assets;
    • started a business or sold a business; or
    • advanced or lent funds or gifted funds to a beneficiary in your Will and you want to document it or equalise it with other beneficiaries.
  1. You have established a discretionary Family Trust and you need to document who will control this Trust if you die or lose capacity.
  2. You have:
    • established a Self-Managed Superannuation Fund;
    • over $1.6 million in superannuation;
    • changed superannuation funds and thus, any death directions are now changed or not valid; or
    • retired and are now in pension phase and lodged your pension nomination, or all previous death directions that you have signed have now lapsed.
  1. Your beneficiaries have:
    • undergone or are undergoing a relationship breakdown;
    • a vulnerability (for example, substance abuse or gambling);
    • entered into a new relationship and have children from a previous relationship;
    • health issues (such as mental health issues or a disability); or
    • acted in a manner that makes you consider how much you wish to leave them or who controls it (for example, a child undergoing a "midlife crisis" who you consider may spend all their inheritance on cars and holidays leaving nil for your grandchildren).
  1. You yourself are in a "blended family" and need to ensure that assets pass as intended and appropriate structures are utilised.
  2. You have had children since last doing your Will.
  3. If you have young children, you wish to stipulate who they will live with, who will control their inheritance, from what age they can control their inheritance, who will control your Self-Managed Superannuation Fund, who will control your Family Trust and who will receive your superannuation benefits and any life insurance policy that you have in place.
  4. You acquire overseas assets.
  5. You mortgage a particular asset or a particular property.
  6. A beneficiary starts their own business, or is being sued, or has entered into a profession where they may be sued (for example, medical practitioner, builder, solicitor or chiropractor).
  7. Your life circumstances have changed. For example:
    • you part own a property with a child (and you live with that child and want to ensure that your Will reflects this);
    • an adult child is dependent on you and you want to ensure they have a roof over their head and may or may not want the estate evenly divided, or may want a particular asset to pass to a particular beneficiary; or
    • you may wish for a beneficiary to have 'a roof over their head' but do not want to gift them the property outright- for example, they may sell and expend the funds on less than desirable items or may, in fact, in turn gift the property outside the family or to an organisation you do not wish them to, so you wish to put in place structures so that the property ultimately passes to who you need it to.

None of these prompts may necessarily mean that your Estate plan has to change. But you should be alert to the potential impacts of these events and changes on your overall philosophy, the way in which you make gifts and whom you wish to receive gifts. Your Estate plan should give you peace of mind that your Estate will pass in accordance with your wishes to the right people in the most asset protective and tax effective way that reduces potential disputes between beneficiaries.

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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