At SRM Lawyers, we are passionate about estate planning. We understand the importance of ensuring our clients have the right documents in place to deal with their assets in the event of their death. However, estate planning is so much more than just preparing a will. It involves thinking about who will pay your bills and manage your assets and finances if you are incapacitated and who will make health and medical decisions on your behalf if you are not able to do so. When it comes to estate planning, there is no ‘once size fits all’ and it is important that the person’s individual needs and circumstances are taken into consideration.

Who will look after your minor children if you and the other parent die? If you are the sole director of a private company, what will happen if you are in an accident and cannot make important decisions regarding your company or business? Who will be appointed to look after your family trust or self-managed super fund? These are questions that we consider on a daily basis and can assist with forward planning to give you peace of mind and certainty.

We can assist with:

Contact us to find out how we can help you.

Do I really need a will?

Regardless of the value of your assets or stage of life, it is vital that you have a will that accurately reflects your wishes and covers all possibilities. If you do not have a valid will in place, the New South Wales intestacy laws determine who will inherit your estate and this will not necessarily result in an outcome you might expect.

The situation can become more complex if, for example, you are separated but not divorced or have a blended family. Having a valid will is also vital if you wish to leave gifts to friends, charities or family members other than your immediate relatives.

What type of will do I need?

Having made the decision to prepare a will, many people assume that their situation is straightforward and request a ‘simple’ will, but there are many factors that need to be considered before we can advise what type of will is best for your personal circumstances. It may be that a simple will is right for you, but everyone’s situation is different and we will firstly need to review your personal and family circumstances and obtain a global picture of your assets and financial set up before confirming that this type of will is best for you.

Non-complex wills

A straightforward will typically appoints an executor and backup executor, a guardian to care for minor children (if applicable) and apart from minor variations, then leaves the person’s estate firstly to their partner and then to their children in equal shares, if the partner has already passed away. This type of will is most suited to clients who have jointly held or limited assets, their beneficiaries are able to manage their own money and are not at risk of a relationship breakdown, bankruptcy or litigation.

Factors that might require more complex planning include scenarios involving blended families, business structures, family trusts, sole directorship of a private company, self-managed super funds and assets in more than one country.

Wills containing one or more testamentary discretionary trusts

Quite often, our clients are concerned about protecting assets and built-up wealth after their death, or they are worried about how one or more of their beneficiaries will manage a large inheritance falling into their hands. This could be for various reasons such as the surviving partner subsequently meeting someone new, their adult children going through a relationship breakdown or because they have a vulnerable family member they would like to protect. In these situations, a will containing one or more testamentary discretionary trusts is often a better option.

A testamentary discretionary trust is a trust that is set up in your will and comes into effect upon death. It allows you to provide for one or more beneficiaries with income and capital to be distributed between them at the trustee’s discretion. The will sets out the classes of beneficiaries, the assets of the estate to fall into the trust and the powers of the trustee as to the allocation of income and capital among the possible beneficiaries.

You and your partner may choose to have your estates going to each other outright in the first instance and then upon the survivor’s death, trusts can be created with each of your children as a primary beneficiary of the trust and your grandchildren as secondary beneficiaries (if one or more of your children predecease you).

The assets that fall into the trust will not be owned by the beneficiaries, so they will generally be protected in the event of bankruptcy and/or Family Court proceedings. The beneficiaries can also share the income from investments of the trust capital with the other beneficiaries of the trust (eg. children or grandchildren) to minimise the income tax on that income.

Click here to download a document which summarises testamentary trusts and their many benefits.

Power of Attorney

A Power of Attorney is just as important as a will. It enables your financial affairs to be managed when you are unable to or do not want to conduct them personally. This might occur when you are unwell, travelling or simply do not wish to be burdened with the day-to-day management of your affairs.

An Enduring Power of Attorney enables another person to act on your behalf in respect of financial matters in case of emergency/mental incapacity/disability. It will still operate in the case of mental incapacity. The Enduring Power of Attorney can be used in all sorts of circumstances, say if you are away and the attorney needs to talk to a bank or insurance company about something in your name, or if you are in an accident and your attorney needs to sell your property to pay for medical expenses.

You can nominate when the Enduring Power of Attorney comes into effect eg. immediately upon signing or once a medical practitioner advises that you are not able to make decisions for yourself. You can also appoint more than one person to be your attorney or one person in the first instance and a second person or persons as a backup, in case the first person cannot act.

A General Power of Attorney operates in limited circumstances and is most often created to deal with a specific transaction, say if you are buying property but travelling overseas so you need your attorney to sign documents for you while you are away. It ceases to have operation if the principal loses capacity.

Company Power of Attorney

An Enduring Power of Attorney allows another person to be appointed to manage your personal assets and financial-related matters in the event of incapacity but cannot be used to make decisions on your behalf in your capacity as director of a company.

If you are a sole director, and particularly if your company operates a business, it is vital that you put in place a Company Power of Attorney appointing someone to make decisions on behalf of the company if you are not able to.

The company power of attorney is in the form of a deed and must be signed in conjunction with minutes of a director’s meeting approving the signing of the deed. At the meeting, the directors will approve the appointment of the attorney and resolve that the company execute the document.

Appointment of Enduring Guardian

An Appointment of Enduring Guardian operates in a similar manner to an Enduring Power of Attorney, but it relates to health, medical and lifestyle decisions such as deciding the type of medical treatment you will receive, if you need to be placed into care, where you will live etc.

The document only operates once capacity is lost and only for the period you do not have capacity. You can also appoint a backup enduring guardian or enduring guardians if the first person is unable to act.

Advance Care Directive

Whilst the Appointment of Enduring Guardian establishes the legal appointment for someone to make health and medical decisions, an Advance Care Directive provides scope and context for the types of decisions to be made.

It is an important way of telling people what your wishes are regarding the types of treatments and healthcare that you would like or refuse. If it is valid, it must be followed.