Estate Planning

What is a Will?

A Will is a legal document where you outline how you would like your property and other assets (your “estate”) to be distributed after you die. A Will must be in writing and your signature witnessed by two witnesses over the age of 18 who are not included in your Will.

If you die without a Will, your estate will be distributed according to the law, which may not be in accordance with your wishes.

What is a General or Enduring Power of Attorney?

Power of Attorney allows you to appoint a person to make certain financial and legal decisions on your behalf, such as how you manage your assets.

A General Power of Attorney often operates for a specific period of time and/or limits power to a specific event. For example, giving someone power to sell your home if you have moved overseas. If you lose capacity during this period of time, it will cease to operate.

Alternatively, an Enduring Power of Attorney continues to operate if you have lost capacity and are unable to make decisions for yourself. Your attorney will be able to continue to make decisions on your behalf in accordance with the terms of the document.

What is an Appointment of Enduring Guardian?

An Appointment of Enduring Guardian allows you to appoint a person to make decisions on your behalf concerning your medical, lifestyle and health care when you no longer have capacity to do so yourself.

If there is ever an instance where you no longer have capacity to make decisions for yourself, it is important to have someone you trust making these decisions on your behalf.

Advanced Health Care Directive

Unlike an Appointment of Enduring Guardian document, which provides general powers to your enduring guardian to make decisions about your health and lifestyle, an Advanced Health Care Directive includes specific instructions for your health care in the event that you are unable to make decisions for yourself.

This document will include your specific instructions on what health care is acceptable and what is not acceptable to you. You may wish to consult with your regular doctor about this.

Your Enduring Guardians, treating health professionals, family and friends must follow this document.

What is a Company Power of Attorney?

Under a Company Power of Attorney, a company appoints a person, other than the officeholders, to act as the company’s attorney. The attorney would be able to exercise the powers prescribed in the Company Power of Attorney, which often allows the attorney to sign documents or make certain decisions.

Common reasons for obtaining a Company Power of Attorney are that a director will be unavailable for an extended period of time, such as travelling and being out of contact, or as a safeguard in the event of unexpected ill health or loss of capacity.

A Company Power of Attorney does not need to grant unfettered or long-term powers, it can also be utilised for set period of time or for a specific purpose, for example entering into a contract to purchase land.

What is a Testamentary Trust Will?

A Testamentary Trust Will is a Will that, on your death, creates one or more discretionary trusts that allows a trustee to manage your estate on behalf of the nominated beneficiaries of the trust.

You can include specific instructions in your Will on how the trustee is to distribute your estate to your beneficiaries, such instructions can be as restrictive or as flexible as you need depending on the individual beneficiary’s circumstances, e.g. a more restrictive trust may protect your assets in the event of a beneficiary’s relationship breakdown.

This trust or trusts are established once the individual passes away and may be an effective asset protection and wealth management strategy.

What is a Binding Death Benefit Nomination?

Superannuation is a “non-will asset”, meaning that it does not automatically form part of your estate upon your passing. To effectively deal with any benefits that may be payable by your superannuation fund upon your passing, you should have a Binding Death Benefit Nomination in place.

A Binding Death Benefit Nomination is a notice to the trustee of your superannuation fund, which directs where your superannuation death benefits will go upon your passing. If you do not have a Binding Death Benefit Nomination in place or have a Non-Binding Death Benefit Nomination, the trustee will not be bound by the direction and may exercise their discretion to decide how to pay any death benefits, which may be against your wishes.

What to expect from us when drafting your Estate Planning documents?

If you require any Estate Planning services, please contact us at 02 4288 0150 or use the link below to access our Estate Planning Questionnaire.

Estate Planning Questionnaire