- Wills & Estate Planning
- Wills & Estate Planning
- Wills & Estate Planning
Professional planning. Expert advice.
Wills & Estate Planning
Specialist Will Lawyers – Fulfill Your Future Wishes
Estate Planning means planning for your death or incapacity, by doing things like making a will, an Enduring Power of Attorney, a Binding Death Benefit Nomination for your superannuation, and an Advance Health Directive.
Quinn & Scattini Lawyers expert wills and estate lawyers can assist with:
The most important part of estate planning is making your will. Your will may be simple or complex, according to your particular circumstances. The most important thing is to make sure that your will is both valid and effective.
Making a valid will requires that your will be properly signed and witnessed. It also requires that you have “testamentary capacity” when you sign your will, and that you understand and approve the terms of your will.
“Testamentary capacity” is a complex legal concept. But, in essence, it means that you must have mental capacity to understand everything you need to know about making a will. It is sometimes a good idea to get a doctor’s report on the day you sign your will, to confirm your testamentary capacity. This is especially important if there is a possibility that someone might contest your will after you pass away.
Making an effective will is more tricky than it might seem. You might be tempted to make your own will, especially if you only intend to have a simple will. The real difficulty with this is that your will might make perfect sense to you, but when someone else reads it they might not understand it the same way you do. There also may be legal issues, of which you might not be aware, that impact on your will.
An effective will is one that accomplishes what you want it to accomplish. This requires an assessment of your wishes in light of your personal and family circumstances, and an application of the legal principles of Succession Law.
If you are house-bound or in hospital, or if you have a family member who needs an urgent will, we can make a house call or hospital visit.
Your will may include a “testamentary trust.” This is a type of trust that can continue, if you wish, long after you have passed away.
Testamentary Trusts are commonly used:
- to set up a tax-effective structure for your children or other beneficiaries,
- to protect your estate from the potential risk of family breakdown or other financial setbacks among your children or other beneficiaries, and
- to provide for disabled children, or beneficiaries with special needs.
You can change your will at any time, while you retain the mental capacity to do so. Sometimes it is desirable to make an agreement (usually with a spouse) that a will is not to be changed without someone else’s (your spouse’s) consent. For example, if you and your spouse each have children from a previous marriage, you might want to leave your estates to each other, with a condition that all of your children and your spouse’s children share equally when you have both passed on. But if you leave everything to your spouse in your will, he/she is then free to make a new will leaving everything to his/her children alone (or to his/her new spouse). “Mutual Wills” are one method of ensuring that your estate will go where you want it to go, under your spouse’s will as well as under your own will.
Mutual Wills require the making of two wills, as well as a separate contract that says you both will not change the wills.
An important part of your estate planning is preparing for the possibility that you may become incapacitated. This means preparing an EPA.
Your EPA can apply immediately if you want it to. But most people choose to make an EPA that will come into effect if they become incapable of managing their own affairs.
An EPA appoints one or more people to act on your behalf. Your “attorney” is the person you appoint to manage your affairs under your EPA. Your EPA can also give specific instructions, or specify limitations on how your attorney is to act on your behalf.
If you have your own business, your estate plan should include business succession planning. Business succession planning involves making sure that your business is able to carry on without you. This can involve, for example, taking out insurance, and, if you have partners or co-shareholders, entering into a Buy/Sell Agreement or a Shareholders Agreement.
Plan for your future care!
The best way to explain an AHD is to compare it to an EPA. An EPA gives someone power to make decisions on your behalf; whereas an AHD tells them what decisions to make.
Although an EPA may give someone power to make financial, personal or health decisions on your behalf, an AHD relates only to health decisions.
You must discuss your AHD with your doctor, as well as having it properly prepared and witnessed.
When you pass away, your superannuation is paid out as “death benefits.” This will include any life insurance you might have within your superannuation. The basic rule with your superannuation is that the trustee of the super fund will determine to whom the death benefits will be paid (subject to certain limited categories of potential recipients).
Some super funds allow you to make a “death benefit nomination” directing the fund trustee about who you want to receive the death benefits, but it is still up to the trustee to decide whether or not to comply with your direction. Some (but not all) super funds allow you to make a “binding death benefit nomination”) (“BDBN“) that bind the trustee to pay the death benefits in accordance with your directions.
A BDBN is as important as a will, and should be professionally prepared, even if the super fund has a particular form that must be used for the BDBN.
If you have a self-managed super fund (“SMSF“), you can ensure that the rules of the fund allow you to make a BDBN.
We can assist you with establishing and managing a SMSF.
Making Sense of it All
There is no better time than now to plan for your future. With professional planning and expert advice, you can easily address all your estate planning needs in a quick and effective manner.
Q&S understand the pressures that arise from planning for your future and aim to limit any confusion throughout the process. To assist you to make sense of it all, our expert will and estate planning lawyers have compiled a glossary of commonly used terms. Access the glossary here.
How We Can Help
Q&S’s expert wills and estate planning lawyers are experts across the range of wills and estates. Q&S’s expert lawyers will work comprehensively to ensure all your estate planning needs have been addressed, answer any questions you have so you understand the legalities and importance of the estate planning documentation, and provide superior support from a dedicated lawyer, from the first phone call to finalising your estate planning.
Why Choose Us?
You will be talking to a real expert, local to you. You will not be treated like a number, but as a real person. Get expert advice, not just what you want to hear in a language you can understand not legal jargon.
Our expert wills and estate planning lawyers are available at any of our local offices.