Choosing who will take on the role of Executor of your Will can sometimes be challenging.
Most Will-makers (aka ‘Testators’) appoint a trusted friend or family member as their executor. This person will end up playing a very important role, with a lot of responsibility.
If they instruct an experienced lawyer who specialises in Wills and Estates, then most of the ‘heavy-lifting’ will be done for them by the lawyer.
Several times each year my phone rings and someone asks me how they can locate and view the Will of someone close to them.
The circumstances of these requests vary, but can be broken down into two main groups: Someone has recently died, and their relative wants to know if they are a beneficiary; or an elderly person is becoming forgetful and their relative is concerned that they have been coerced into changing their Will, and want to satisfy their curiosity.
When most Australians think about estate planning, they picture a Will, and perhaps one or more delegations or directives such as powers of attorney.
But there’s one powerful piece of the financial puzzle that often gets overlooked: your ‘superannuation death benefits’.
As the superannuation balances of Australians continue to grow—thanks to compulsory employer contributions, voluntary salary sacrificing, and market growth—it’s never been more important to understand how your super fits into your broader estate planning strategy.
In my four-decade career, I have never come close to charging $10,000 to create a Will for any of my thousands of clients, and that includes an international billionaire who controlled 27 different trusts, each with a corporate trustee!
However, I have acted in plenty of probate applications where a cheap or DIY Will has cost at least $10,000 to ‘fix’ after the testator died.
Here are three true examples from my clients in just the last twelve months:
The COVID-19 pandemic triggered a huge spike in Australians rushing to put their affairs in order, however a lot of the Wills that were created during this time may not be worth the paper they are printed on.
Rod Genders is a senior Australian lawyer from the oldest law from in South Australia (Genders and Partners established 1848), which specialises in Trusts, Wills and Estates.
He warns about the following common problems that he is seeing in his law practice from mistakes made by people in their COVID-era estate planning.
The Western Australian Supreme Court publicly stated in a 2014 judgment that “Homemade Wills are a curse,” and inevitably lead to protracted and expensive legal battles in family disputes involving substantial estates.
The Court said the legal issue around the proper determination of the deceased’s Will could have been avoided if he had “consulted a lawyer and signed off on a Will that reflected his wishes”.
In 2023 South Australian law regarding Wills and estates is about to undergo a massive change.
For a long time, people have complained that it is too easy for gold-diggers to challenge a Will – especially adult children who are not deserving.
Think: estranged adult child who never visited or supported their old mum in any way, only turning up to claim a share of mum’s estate after she died.
Mr B granted power of attorney to his daughter M.
B had significant medical issues and was highly vulnerable.
When B lost his capacity, and needed to move into a nursing home, M sold her father’s home under power of attorney.
However she did not use the money to pay the upfront capital cost of a Refundable Accommodation Bond.
Baby Boomers are retiring in record numbers, and seniors need to know how to best plan for both themselves and their loved ones.
There are definitely some sure-fire approaches to take – as well as some serious pitfalls to avoid.
1. Put Your Affairs In Order
The first step to putting your affairs in order is to take specialist advice: a lawyer who specialises in estate planning; a financial planner who specialises in retirement planning’ an accountant who specialises in tax planning.
Protecting your digital assets – your electronic and online accounts and data – has never been more important.
In 2023 Australia, our digital security laws are about to be reformed following multiple major Australian data breaches.
Over a six-month period in late 2022, Australia suffered multiple major data breaches that each affected 1 million or more people, according to the latest statistics by the Office of the Australian Information Commissioner (OAIC).