Estate Planning

Recording your instructions for what should occur when you pass away is one of the most important things you can do. If you leave no instructions, there are significant practical and financial difficulties in trying to sort out your estate.

The most effective way to legally document your instructions is to prepare a will. Not only are there legal requirements to preparing a will, but we can assist by providing comprehensive advice on the structure and content of your will.

This can include:

• Whether to include testamentary discretionary trusts for their superior asset protection and tax planning qualities
• Managing specific gifts, including those of single high monetary or sentimental value
• Determining who should control your wealth on your passing
• Guardianship of your minor children, if any
• How to deal with interstate or overseas assets
• Managing the success of a challenge against your estate;
• Providing for vulnerable or at-risk beneficiaries.

To complement your will, we can provide you with a letter of wishes – a template document for you to complete that captures some of the non-legal aspects of your estate planning objectives such as how your wealth should be managed and comments about specific beneficiaries.

Appointing people to make decisions for you if you cannot make decisions for yourself, is a key part of estate planning.

We can assist with preparing relevant enduring power of attorney documents. While the type and name of such documents vary in form between each State, generally the powers are divided so that different people can be appointed for each of the following types of decisions:

• Financial [what happens to your assets]
• Personal/medical [what happens to you]

While most states have pro-forma versions of these documents, we can assist by providing comprehensive advice in relation to key considerations:

• Where appropriate, aligning your attorney documents with your will so that your financial controllers are consistent on death or incapacity
• Advice on when the document should come into effect
• Inclusion of additional powers for your attorneys that allow them the flexibility to manage your affairs in a manner consistent with your wishes
• Assistance with registration of documents with relevant third parties, where required
• Preparation of complementary documents for each state you own real property in.

As with your personal affairs, you should have a succession plan for your family business. Determining the best way to hand over control of your business to the next generation can be complex.

We work with families to help create a business succession plan that sets out a road map for the future of their business.

Each family and each business are different so what is needed can vary. Whatever the agreed plan we develop with you, we help you examine the key drivers of the succession plan for your family business.

This can include looking at:

• Your general succession goals
• Your business and family values
• Options for internal or external management
• Exit options for those in the business
• Valuation and remuneration issues for key family members working in the business
• Succession risks for the business and each family member

Superannuation does not automatically form part of the asset pool that is governed by your will.

Separate steps must be taken to notify the controller of your superannuation fund and what your wishes are. This notification is a written document called a ‘nomination’. There are lots of considerations that we can assist with when determining how to draft your superannuation nominations, including:

• The type of nomination: binding or non-binding; or reversionary beneficiary of your pension [including looking at whether you wish your super to be paid as a lump sum, pension or to have a choice].
• Who you want to receive your super, including liaising with your other advisors regarding the tax implications of your choice.
• Provision of benefits in blended family situations.
• Review of the governing documents for any self-managed funds to confirm the requirements for valid nominations.

Superannuation can be complex. We will work collaboratively with your superannuation advisors to ensure your superannuation strategy aligns with your estate planning objectives.

Similar to superannuation, assets held inside trusts do not automatically form part of your estate. We can help by reviewing the succession of trusts in your broader group to ensure they align with your wider succession objectives to include the following:

• Reviewing the deed [and related documents] for each trust to see what happens to the controller[s] of the trust if they pass away or lose capacity
• Where required, preparation of documents to nominate your intended controllers
• Where appropriate, updating the default mechanism of the trust to align with your instructions on death or incapacity
• Advice regarding the appropriateness of and assistance with preparation of an ultimate trustee company with tailored control mechanisms to suit your objectives
• Liaising with your other advisors regarding potential issues associated with trusts such as taxation, inter-entity loans and unpaid present entitlements.

Dealing with the loss of a loved one is difficult on so many levels. Only a small part of that is legal in nature, but the help needed varies on a case-by-case scenario.

We offer a broad range of services to assist families and executors with the administration of an estate. You’ll see we have a separate section for Grants of probate and estate property transfers as these are generally are matters needing legal assistance. There are however many other services we can assist with as part of administering an estate including:

• Liaising with the deceased’s advisors [accountants, financial planners and so forth] regarding the circumstances of the deceased and what each party is best placed to assist with
• Communicating with beneficiaries and third parties with regards to assets and accounts of the deceased
• Maintaining a trust account for funds of the deceased on behalf of the estate
• Where required, advice and assistance with managing testamentary trusts

As each person’s circumstances are different, we will work with you to tailor an approach that is appropriate.

As the value of estates is rapidly increasing, it has become common practice for third parties such as banks and insurers to require the executors of an estate to obtain a grant of probate before they will allow access to and authority over the deceased’s assets.

A grant of probate is the seal of the Supreme Court confirming that the will presented to it is the last will of the deceased and the executors appointed are authorised to act on behalf of the estate. Each state has a slightly different process on how to obtain this and some third parties may even require you to have a grant prepared in one State, then reissued [‘resealed’] in their respective State.

We can assist with applying for a grant of probate or a reseal including:

• Identifying any issues that may affect the application
• Dealing with a vacancy in the role of executor
• Attending to relevant advertising requirements, where necessary
• Assistance with preparing an inventory of assets and liabilities required to be submitted to the Supreme Court in most jurisdictions
• Preparation of relevant court forms and supporting evidence.

The most significant part of managing an estate involves the transfer of the deceased’s assets.

Often this is a two-stage process [deceased to executor and executor to beneficiary], however, there can be complications depending on certain circumstances of the deceased and the way they have drafted their will.

A significant amount of asset transfer may not require legal assistance [transfer of bank accounts etc]. We can however help with:

• Identification of the assets required to be transferred
• Liaising with third parties with regards to their internal processes required to transfer estate assets
• Preparation of documents required to appropriately transfer the assets [including, where required, relevant government forms];
• Negotiation and assistance with agreements that vary the intended distribution of estate assets
• Collaboration with estate litigation specialists where disagreements arise regarding the distribution of an estate.