Estate planning is the process of anticipating and arranging for the disposal of your estate when you are deceased or no longer able to make financial decisions. On the surface this can appear quite simple however with numerous financial and property assets along with different beneficiaries, this can quickly become a complex matter. There are several assets that may not be able to be covered in a Will including superannuation, insurance policies and jointly held property.
There are several methods to ensure the disposal of your assets reflect your wishes upon your death or mental incapacity, the most common being a Will. One of the requirements of a Will is to appoint an executor who will be tasked with ensuring your instructions are followed.
Whatever Estate Planning measures that you have in place, they will need to be continually reviewed and updated as your financial and family circumstances change.
What is a Will?
Your Will is a legal document that directs how your estate assets are to be distributed amongst your nominated beneficiaries. You are required to nominate an Executor in your Will. The Executor has the duty of carrying out your wishes in your Will and is granted power to administer the estate.
Although it is possible to write a Will by yourself, it is advisable to use a solicitor as there are various legal formalities you need to follow to make sure that your Will is valid. You may also need legal advice for more complicated matters.
The cost of writing a Will can vary between solicitors and will depend on how complicated your affairs may be and the experience of the solicitor.
Enduring Power of Attorney
An enduring power of attorney is a legal agreement that enables a person to appoint a trusted person – or people – to make financial and property decisions on their behalf. An enduring power of attorney is an agreement made by choice that can be executed by anyone over the age of 18, who has full legal capacity.
The benefit of an enduring power of attorney is that unlike an ordinary power of attorney, the power granted to the appointed attorney is enacted if you are mentally unable to administer your own financial affairs.
An enduring power of attorney does not permit an attorney to make personal and lifestyle decisions, including decisions about treatment. The authority of the attorney is limited to decisions about the donor’s property and financial affairs.
Non-binding & Binding Death Nominations
Death benefits are funds paid upon death by the Trustee of your superannuation fund to your estate or to the beneficiary you have nominated. When nominating a beneficiary it is important you understand that there are implications for each choice you make, including the type of nominations that you make.
There are two types of nominations for beneficiaries: binding and non-binding.
Many death benefit nominations made by members of superannuation funds are not binding on the superannuation fund trustee. This means that the trustee of the super fund may exercise a discretionary power to determine how the benefit is distributed and to whom.
Upon death your superannuation funds are paid to your estate or to the beneficiary you have nominated. When nominating a beneficiary it is important you understand that there are implications for each choice you make, including the type of nominations that you make.
Binding death nominations may be non-lapsing, or may lapse every three years, depending on the super fund. The difference between lapsing and non-lapsing superannuation nominations is that a lapsing nomination is generally valid for 3 years, so you will need to review and renew as necessary; whereas a non-lapsing nomination does not expire.
A death benefit will be binding on the trustees if:
- The nomination form includes the name of each person(s), or class(es) of person (e.g. spouse), and the allocation of the death benefit amongst nominees is clear
- Each death benefit nominee is a legal personal representative or dependant of the member
- The nomination form is dated and signed by the member in the presence of two adult witnesses, neither of whom is a nominee named in the notice
- The nomination form contains a declaration by the witnesses, stating that the member has signed and dated the nomination form in their presence
- The nomination is valid.