Whether you are 18 or 108, or any age in between, having a well considered and well prepared will is important, and can help avoid distressing and costly situations in the event of your passing.
At one end of the spectrum, there are individuals who do not think that they have any assets. Lauren Doktor, Partner and wills and estates lawyer at Miller Harris Lawyers, comments “I often hear the statement “I don’t have any assets, so I don’t need a will”. This couldn’t be further from the truth.” She goes on to explain that that if you have worked, you will have a superannuation fund, and in fact, superannuation is often a person’s largest asset.
In estate planning, superannuation is an unusual type of asset. Your super is held for you on trust by the trustee of your superannuation fund and without a will and properly completed binding nomination, your superannuation will be distributed as decided by the super fund trustee. Further, where a person dies without a will the rules of intestacy will apply. These do not take into account your circumstances at the time of your passing and therefore the distribution of your estate under these rules may not be in accordance with your wishes.
For others who have complex financial and or family circumstances, they may be more concerned with protecting their wealth for future generations. For these individuals, estate planning could also involve implementing a testamentary discretionary trust (which would come into affect after their passing). These structures may also assist in minimising tax. Testamentary trusts can be useful where you have minor children, or for those adult children who are, let’s say, less responsible.
For those with minor children, your will should also set out your wishes of guardianship for your children. This can be a confronting issue for parents. Lauren can guide you in how to approach these difficult but important decisions.
Every family is different, increasingly blended families are the norm, and more often than not there are complex family dynamics. These issues will impact how you want your estate dealt with in the event of your passing. There is no ‘one size fits all’ and seeking advice from a skilled lawyer who understands the array of laws that can impact estate planning and administration will assist you in having a comprehensive plan.
Estate planning is also not a ‘set and forget’ task. Whilst you do not need to update your will every year, I really encourage you to regularly review your will to ensure that it continues to reflect your circumstances and wishes.
This article is general in nature and does not constitute legal advice.
Lauren Doktor is a Partner and practices predominantly in Wills and Estate at Miller Harris Lawyers. She also practices in commercial and property law which complement her passion for wills and estate planning and estate administration. For further information visit www.millerharris.com.au; or if you wish to discuss your circumstances, please contact Lauren on 07 4036 9700.