Estate planning, wills and trusts are often topics people appreciate as being important and requiring discussion with experienced wills and estate planning lawyers, however due to busy day to day life commitments are often put to the bottom of the list by people until it is too late.
Our wills and estate planning lawyers can provide peace of mind by ensuring the appropriate documents are in place to provide certainty and save expense to our loved ones in the long term during a very difficult time in their lives. Planning for death is generally an issue that is neglected by many Australians.
There are legal issues that must be taken into account when you are considering your estate planning and financial planning affairs and our professional wills estate planning team in Perth are here to help. How you structure your will, the appointment of executor’s/trustees, the distribution of your estate and appointing are all vital issues that should be addressed in your Will.
There may be circumstances where testamentary trusts should be established after your death or life interests created.
Our wills and estate lawyers can advise you and assist you in the preparation your estate planning wills and trusts.
What is a Will?
A Will is a legal document that sets out how someone’s estate is to be distributed, after they pass away. Whilst this is a topic that we often do not prioritise in our day to day lives, having a valid will is imperative to ensuring that the people we care about, are sufficiently looked after, to help secure their future.
There is a common misconception that everything a person owns forms part of their estate. It is often the case that property or financial resources of high value do not form part of your estate and need to be regulated outside of the Will in order to ensure a fully workable estate plan.
To ensure that all your assets, superannuation, life insurance policies and other financial resources are properly channelled to your desired distribution wishes, it is imperative you contact our will and estate planning lawyers.
What is the process of making a Will?
The initial step to get your family succession plan, wills and estate planning process started is to contact our office to book an initial consultation to see one of our knowledgeable estate planning lawyers in Perth.
As part of our consultation process, we will discuss the entirety of your assets, and will formulate a strategic plan to ensure that you control exactly how each of your assets are distributed. We will tailor your estate plan depending on your circumstances and will determine the most appropriate methods to affect that plan. Such plan could include the following:
- Testamentary Trusts created within the Will to provide protection for young beneficiaries, spendthrift beneficiaries, or those who do not have the capacity to deal with their own affairs.
- Enduring Power of Attorney.
- Advance Health Directive.
- Integrating company, trust and superannuation structures into your estate plan.
- Preparing Financial Agreements to regulate ownership of assets.
Reviewing your Will
You should review your Will regularly and ensure that it reflects your current wishes for your family wills and estate planning. We highly recommend that your Will is reviewed in the following circumstances:
- Separation, divorce or marriage.
- The addition of children or grandchildren.
- The acquisition or disposal of company, trust or business assets.
- Every 3 years for superannuation purposes.
- Any major change in circumstances, such as the death of a beneficiary, illness of Executor or a drastic change in your financial situation, including debts or asset accumulation which may be a good time to consider setting up a testamentary trust.
Contesting a Will
In Western Australia, eligible persons can Contest a Will and make what is called a Family Provision claim (Inheritance Claim) if they have been left without adequate provision from a deceased estate.
If you are eligible to make a claim on someone’s estate for further provision, the Family Provision Act 1972 states that you must make a claim on the estate within 6 months of the grant of probate.
It is essential that you contact a wills and estate lawyer as a matter of urgency in such matter. Whilst we do not deal with litigious estate administration matters, we are able to provide you with a referral to someone who will be able to assist in this regard.
Frequently Asked Questions (FAQ’s)
What is difference between estate planning and a Will?
Your ‘Estate Plan’ refers to all of the mechanisms that you have in place in the event you were to lose temporary capacity, or for the distribution of your estate after you pass away.
Preparing a Will is one aspect of your Estate Plan, however you should also consider documents such as an Enduring Power of Attorney (link) and an Advance Health Directive
(link) as part of your complete Estate Planning requirements.
What is a Testamentary Trust in a Will?
A testamentary trust is a trust created by your Will and does not come into effect until after your death. There are various types of testamentary trusts, but it is usually a trust where the trustee has full discretion about distributions to the beneficiaries.
A testamentary trust can continue for a period of 80 years if so required but it is also possible for the testamentary trust to vest at any earlier date.
What is the difference between a Will and a Testamentary Trust?
A will is a legal document which sets out how your estate is to be distributed upon your death, it does not necessarily need to have a mechanism to create a testamentary trust and many simple wills do not encompass a provision to establish a testamentary trust.
A testamentary trust is created by the will so that specific assets will be held on trust for the benefit of beneficiaries for a specific period until such trust is to vest absolutely on such beneficiaries.
Why use a Testamentary Trust?
- To protect a gift from potential creditors of a beneficiary;
- Where you want to provide for your spouse but are concerned that they may remarry and divert the family assets to the new family;
- In the case of spendthrift children/gambling difficulties/drug addiction for example, you can provide for such a child through a trust ensuring his/her share is kept intact;
- There are major potential tax savings which you may be able to achieve through income splitting through such trust;
- To protect the estate from will challenges;
- Where you need to ensure that any disabled or intellectually impaired children are looked after.
This is a very complex area and it is essential that you contact our wills and estate lawyers to discuss these matters in detail.
Who can I name as beneficiaries in my Will?
You can name any person, family member, friend, organisation, or institution as a beneficiary. The only person you can’t name as a beneficiary is a person who serves as a witness to the signing of the Will.
What is the cost of preparing a Will?
This will depend heavily upon what you require in your Will. For instance, if you have complex company or trust structures, or your Will needs to take into account a blended
family (step children/grandchildren), the costs will often be higher. Depending on the complexity of your particular circumstances an objectives, preparing your will can cost
between $375 and $750. However, at Affinitas Legal, our Estate Planning Lawyers offer fixed fee Wills, and fixed fee Estate Planning bundles. This way, you will know upfront costs before deciding to commit.
What are the Testamentary Trust Estate Planning Risks?
- You should be careful about the taxation rules for superannuation death benefits if the trust beneficiaries are not confined to dependants.
- The cost of administering a testamentary trust. If a professional is appointed trustee, there will be fees for this service.
- You should consider whether the income generated by your estate will be sufficient to warrant a testamentary trust.
- You should also be aware of any taxation implications of creating a testamentary trust.
What happens if I don’t have a Will?
If you do not have a Will, your estate will be distributed in accordance with a legal formula contained in section 14 of the Administration Act 1903 (WA) – Entitlements of intestacy. You will have no control over the allocation of your assets if you pass without a valid Will.
What criteria make my Will null or void?
Since February 2008 Marriage and Divorce invalidates an existing will. In the event that you have married or divorced since preparing your Estate Plan, in particular your Will, we recommend that you have a new Will prepared. At Affinitas Legal, our Estate Planning Lawyers offer fixed fee Wills, and fixed fee Estate Planning bundles.
Our experienced team of Estate Planning Lawyers
Our Will & Estate Planning team will help you understand your legal situation, so you are empowered to make informed decisions that will protect you, your family and your future. Meet our team.