Articles | Genders and Partners

Wills and Estate Planning Adelaide: Kids Growing Up

As a parent, what is our worst fear?

For most of us, it would be receiving that phone call telling us that our child is having a medical emergency. It might be a car accident, or some other health crisis, but as soon as we are notified we want to rush into action to help them. No matter how old they are, they will always be our child, even if they are now an adult.

It used to be that when a child turned 21, he would receive a key to the front-door of the family home, in a rite-of-passage symbolising and acknowledging their transition from child to adult.

With the faster pace of life, and changing societal expectations, the legal age-of-majority is now18.

Did you know that if your children are aged 18 or older, even if they are still living at home with you, then you are no longer able to make their medical decisions for them? In fact, you have no right to speak with their doctor or nurses or see their medical records.

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Benefits of a Discretionary Trust

Discretionary trusts are flexible estate planning tools that can offer you many advantages, some of which include:

1. Revocable. Because the needs of family members may change over time, a discretionary trust normally allows you to modify trust provisions or change the beneficiaries.

2. Private. A discretionary trust may avoid or reduce the costs and delays of Probate – which is the Court process that oversees the administration of your estate. Because a discretionary trust is not subject to public scrutiny, your beneficiaries and the specific amounts or percentages they receive remain confidential.

3. Continuous. Assets put in a discretionary trust stay under the control of the trustee, until you choose differently. When the trust is established, you can name a successor trustee who will carry on financial responsibilities in the event of your incapacity or death.

4. Flexible. You may add other assets to the trust during your life. The discretionary trust can be especially useful if you own real estate in another state by eliminating the need to have a separate probate proceeding in the other state.

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Wills and Estate Planning Adelaide: Wills, Trusts and Estate Planning for New and Young Parents

New and young parents often mistakenly consider that have too few assets to bother with creating an estate plan.

They probably have a home with just a small amount of equity, and hopefully they have decent jobs, and reasonable prospects for advancement.

Most of us have superannuation, and many super funds carry life insurance. In dollar terms, it is not uncommon for young people to be worth more dead than alive.

When considering estate planning they should think about naming a guardian for their children and to make sure their money goes to the kids.

Most people grossly underestimate the money it will take to raise their young children and educate them. They frequently only have a small fraction of the life insurance that is needed. Fortunately, term insurance is relatively inexpensive for young people.

They should consider establishing a Trust to receive the insurance and other assets. This can be done through a Testamentary Trust created in their Will, or as a Discretionary Trust.

A trust provides some asset protection, and professional management for the funds.

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Wills and Estate Planning Adelaide: Star Trek and Estate Planning

Of all the countries in the world, Australia ranks in the top 5 with longest lifespans (17 places ahead of the UK and 33 places ahead of the USA). Each year, our average life expectancy continues to increase.

And yet, more than half of adult Australians do not have a legal Will, and even fewer have an integrated estate plan.

Life used to be simpler. People worked for the same employer for their entire career. They had government-guaranteed pensions. Medical expenses were manageable. Divorce was rare and remarriages rarer still. 25 years ago, when my legal career began, I can clearly recall the expression “broken home” being used as an excuse for various misconduct. Most people were not invested in the stock market.

But, the trade-off was that although life was simpler, it was also significantly shorter. Retirement didn’t last long, so people didn’t worry as much about having sufficient savings to last a lifetime. Long periods of incapacity were unusual. You worked, then you died.

When the Australian Government began the aged pension in the 1920’s, they set the age-of-eligibility at 65 for men. At that time, the average life expectancy for men was only 63, so the Government did not expect to have to pay out much for the pension, nor medical treatment, aged care or publically assisted accommodation.

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Genders and Partners | Wills and Estate Planning - Lawyer Adelaide

Wills and Estate Planning Adelaide: Is it Time for The Talk?

Challenging Estate Planning Conversations

In family life there are a number of “Talks” which parents need to have with their children. Remember “Where do babies come from?”

Well, much later in life, older parents need to talk to their adult children about Wills and powers-of-attorney, elder care and end-of-life decisions.

In my practice as a lawyer specialising in estate planning, I have repeatedly noticed that my older clients are generally much more willing to discuss estate planning issues than their adult children.

I have speculated as to the reasons for this, and have come up with a list of possible explanations:

Fear of being seen as interfering in their parents’ affairs;
Concern at how their interest in their parents’ estates may be interpreted by others;
Discomfort at confronting the mortality of their parents;
A recognition that parents are getting older, and perhaps their best health is behind them;
A perception of “passing the baton” from one generation to the next.

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Wills and Estate Planning Adelaide: The Benefit of Advance Directives

A recent study in the New England Journal of Medicine, shows one in four elderly people require someone else to make decisions about their medical care at the end of their lives.

These findings support the value of advance healthcare directives as a means of making end-of-life treatment preferences known (sometimes called anticipatory directives or living wills).

The study found that such formal estate planning documents improved the likelihood that a patient’s wishes would be followed and reduced emotional trauma among family members.

The results illustrate the value of people making their end-of-life wishes known in an advance directive (living will) as well as designating someone to make treatment decisions for them before the end-of-life stage. This is why both a Natural Death Advance Directive and a Medical Power of Attorney are necessary parts of a modern integrated estate plan. Each document fulfils a specific purpose.

The Associated Press reports: “In the study, those who spelled out their preferences in living wills usually got the treatment they wanted. Only a few wanted heroic measures to prolong their lives. The researchers said it’s the first accounting of how many of the elderly really end up needing medical decisions made for them.”

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Wills and Estate Planning Adelaide: Estate Planning Challenges of Blended Families

As more Australians get married more than once, estate planning issues involving blended families are becoming more common.

A blended family is where there are children from more than one relationship and they raise particular challenges for estate planning.

A typical example is where a man has children with his first wife, then re-marries a younger woman and has additional children with her.

Because marriage automatically revokes all prior Wills, his older children may be concerned that his new wife and her children may influence him to their advantage, at the expense of the older children’s inheritances.

This is a growth area for lawyers who work in the area of Family Provision claims, where Wills and estates are challenged in Court.

If you have a blended family, you need to exercise considerable caution when creating your Will and estate plan.

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Wills and Estate Planning Adelaide: Estate Planning to Show Your Family You Love Them

How can you show your love for your family even after you are gone? None of us knows what the future holds. My godfather died in his 20’s and he left his young wife with a 3 month old baby to take care of. It doesn’t matter what stage of life you are in, you need to be prepared.

Here are a few practical steps to help you be prepared from a financial and administrative perspective.

1. Create a legal Will and keep it up to date.

Even if you don’t think you have a lot of assets, you need to have a Will because you don’t want the government to dictate what happens to your property after you are gone. It will save your family a lot of time and grief, because getting an estate in order after someone has died without a Will can take a lot of time and money. You may be surprised by how many possessions you own … Super, life insurance, a car … it all adds up.

It is important to discuss who will care for your children if something should happen to both parents. It is certainly a hard decision and there are many factors to consider.

Don’t risk a DIY Will-kit. They are little more than expensive pieces of stationery, and offer no backup or support. They even say on those kits that they are not intended as a substitute for legal advice! They are the cause of a growth-area in estate-litigation, because so many people make mistakes with them. The problems will only show up after you’re dead and gone. Then it’s your family & loved ones who have to wear the cost and all the delay and heartache to try to fix it all afterwards.

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Accommodation after Death?

This isn’t the beginning of a joke about the person who died and went to Heaven… It’s a serious estate planning question about how a family-member might continue to live in a property after the owner has died. This question frequently arises (where a spouse, child or sibling was living with the deceased), and it is often the cause of unnecessary concern & anxiety.

Following your death, family-members may have a challenge in finding new accommodation quickly; they may not have the finances available and if the house is sold quickly, could be rendered homeless.

Is there some way to delay the sale-after-death for a reasonable period to allow the family-member some time to adjust to his new circumstances; to cope with the grief of losing you, and to build-up finances towards a deposit for his own property or to find a suitable home to rent and move out?

Yes – there IS a way! In your Will, you can create a testamentary trust leaving the house on trust, to be used by the intended person (let’s call that person the Tenant), with a clause in your Will saying that the Tenant can stay in the property for the agreed period.

The trustees of the house won’t be allowed to sell it without the Tenant’s consent. It is not theirs to sell.

Your Will can contain all sorts of additional conditions, such as whether the Tenant will be obliged to insure the house correctly, pay rent and keep it in good repair.

There may be an agreement that the Tenant can move to a replacement property under the same terms, say if the original property becomes too much for the Tenant to mange and maintain. If a replacement house of less value is purchased the spare funds will go into the deceased’s residuary estate.

This, of course, only works if the property can be passed on this way in a Will and the house isn’t required to be sold immediately for cash for a particular reason, perhaps to clear a tax bill or to pay a specific monetary legacy.

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Wills and Estate Planning Adelaide: Organ Donation as part of your Estate Plan

There are a number of ways in which you can make an anatomical gift, which is a gift of your organs, body parts or your entire body for transplant, therapy, research or education.

Although you can put a clause in your Will or other properly signed and witnessed documents, it is best to sign up on a nonprofit organ donor registry such as the Australian Organ Donor Register.

This registry is a confidential computerised database that documents your wish to be an organ, tissue and/or eye donor. It integrates with the various state Departments of Motor Vehicles to note upon your drivers licence at the time of renewal.

In your medical power of attorney, you could give the power to make an anatomical gift to your medical agent, who would then have the authority to make a gift of all or part of your body in accordance with your previously-expressed wishes.

You may have a concern that your life might be ended prematurely in the interest of harvesting your organs. By law, every effort has to be made to prolong your life in accordance with your wishes, before an anatomical donation is considered. Also by law, the medical team treating you must be separate from the transplant team.

Generally, with the exception of gifts during your own lifetime such as blood, a kidney or bone marrow, body-part recoveries can only be pursued after all life-saving measures have been exhausted and you are officially declared dead.

There are no guarantees with anatomical gifts. Just because you direct that your body or parts be used for transplants, therapy, research or education, does not necessarily make it so. Your anatomical gifts must be examined and be acceptable to the medical school, anatomy department or organ transplant team.

There always is a need for bodies and body parts. There are long waiting lists for people in need of transplants. Even if your eyesight is poor, you may have a good transplantable cornea that could give somebody the gift of sight. You may have skin that can be used to aid a burn victim or bone that could be used for an accident victim.

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