At RBF Law we offer clear succession and estate planning advice to help you make the right decisions for you and your family to ensure your final wishes are carried out. Some of us will not address the legal implications of this and, if you don’t, then this can cause more added stress for your loved-ones at an already emotional time.
We can also provide you with advice and assist you where you have been appointed the executor of an estate under a will.
Our legal services include:
- estate planning
- business succession planning
- testamentary trusts
- estate administration (collect assets, payment of liabilities, probate and transmission applications, tax issues and estate distribution).
- powers of attorney
- advance health directives.
What is estate planning?
Estate planning is essentially the process by which you can plan and manage your assets during your lifetime, upon your death or if you lose legal capacity.
You should consider what comprises your estate by looking at what you own, what you control and what is controlled for your benefit. You then need to consider what legal documents are required to manage and operate your estate. This can be achieved through a Will, a Power of Attorney, an Advance Health Directive or identifying an appropriate trust structure.
For all of you estate planning advice please contact the team at RBF Law.
Do I need a Power of Attorney?
There may come a time when you are incapacitated and unable to make decisions for yourself concerning financial or personal matters or health care issues. It may even be that you have to travel overseas and are unable to attend to financial matters during that time. To cover these scenarios, and provided you are over the age of 18, you can appoint someone whom you trust to act on your behalf to make those decisions for you. That person is referred to as your attorney.
Please contact the experienced team at RBF Law to discuss your Power of Attorney requirements.
Who should I appoint as my Attorney?
You should appoint a person who is over the age of 18 and whom you trust will act honestly and make responsible decisions on your behalf as your attorney. This person will have significant power to act on your behalf and it may be necessary for you to consider the scope of the power to be given to them. Any decisions made by your attorney will have the same legal effect as if those decisions were made by you.
What types of Powers of Attorney are there?
There are two types:
- General Power of Attorney: this is used when you still have capacity and allows you to appoint someone to make financial decisions on your behalf for a particular event or for a specified period of time. It will cease to operate if you lose capacity to make decisions for yourself and will also cease to operate once the particular event or specified period of time has concluded.
- Enduring Power of Attorney (for financial and/or personal and health matters): this allows you to appoint someone to make financial, personal and health decisions on your behalf. You can appoint the same person as your attorney for all of these matters or you can appoint a different person for each matter. It will continue to operate if you lose capacity to make decisions for yourself.
Our team at RBF Law will assess your personal circumstances and prepare the right Power of Attorney to best suit those circumstances.
How long does an Enduring Power of Attorney stay operating?
An Enduring Power of Attorney will stay operating until it is:
- revoked by you;
- you pass away;
- your attorney dies or loses decision-making capacity; or
- your attorney becomes unqualified e.g. bankrupt or a paid health care provider for you.
What is an Advance Health Directive?
Provided you are 18 years of age, you can complete an Advance Health Directive. This document is a formal way for you to give directions about your future health care for various medical conditions. It will only come into effect if you are unable to make decisions for yourself. You can state your directions are to only apply when you cannot make decisions or if you are terminally ill.
You should think very carefully about what you want your medical treatment to achieve if you become ill. If that treatment could prolong your life, what level of quality of life would be acceptable to you? How important is it for you to be able to communicate with family and friends? You may want to include a direction to withdraw medical treatment designed to prolong life. However, a request for euthanasia would not be followed as it is a criminal offence to accelerate the death of a person or to assist another person to commit suicide.
It is highly recommended that you discuss your concerns with your doctor before completing an Advance Health Directive.
Please contact one of our experienced lawyers to discuss whether an Advance Health Directive is best suited to your circumstances.
What is a Will?
A Will is of utmost importance even if you have limited assets. It is a legal document that allows you to determine how your personal assets will be distributed when you die.
Do I need to make a Will?
If you are 18 years of age or older we recommend you make a Will. Your Will allows you to ensure your personally owned assets are distributed by your executor according to your wishes after you die. Your Will also gives you the opportunity to appoint guardians to look after your children, set up a trust to provide for your children, make provision for the care of family pets, give money to charitable organisations, express your preferred funeral arrangements and burial or cremation requirements and ensures your personal assets are given to beneficiaries of your choice. Without a valid Will you are unable to have a say about how your estate is going to be distributed after you die. Our experienced lawyers at RBF Law will draft and prepare your Will professionally and carefully to specifically meet the needs of you and your family. We will work with other professional advisors such as your accountant, financial planner and insurance adviser to ensure your Will provides for a succession plan and adequately provides for the distribution of all of your assets on your death.
What happens if I die without making a Will?
If you die without a Will then you die ‘intestate’. This means your personal assets will be distributed according to rigid rules set down by the laws of intestacy. There is no guarantee your assets will be distributed as you would like and those laws may not provide future financial protection for your children and grandchildren. Your family and friends ultimately may not be provided for in the way you had wished.
What assets can be included in my Will?
Personal assets can be included in your Will such as your house, investment properties, land, car, jewellery, valuable furniture, antiques, heirlooms, shares, bank accounts, cash, loans and even your family pets. They do not include any assets you jointly own with another person or life insurance policies, superannuation proceeds or any trust assets.
What happens to my jointly owned assets?
If you own assets jointly with another person then upon your death ownership of those assets automatically passes to the surviving owner irrespective of the provisions of your Will. Jointly owned assets can include your family home, investment properties and bank accounts.
How are my superannuation and life insurance policies distributed when I die?
The proceeds from your superannuation and life insurance policies do not form part of your estate when you die. Payment of such policies is decided by your life insurance company, the trustee of your super fund or according to any valid binding death benefit nomination given by you to your super fund (which must be renewed every three years unless it is a non-lapsing nomination). It may be that a decision is made to pay those proceeds to your estate. Therefore, provision should be made in your Will for your executor to distribute such proceeds in accordance with your wishes should this occur.
When should I change my Will?
It is always a good idea to review your Will every two years or if any of the following occurs:
- you buy or sell property;
- you have children or grandchildren;
- your financial situation changes;
- you retire;
- you get married or divorced;
- you enter into or end a de facto relationship or civil partnership;
- you change your name or anyone named in your Will changes their name;
- if your executor dies or becomes unwilling or unsuitable to act due to ill health, age or any other reason;
- if a beneficiary dies.
- if any specific property has been left to a specific beneficiary and you subsequently sell that property; or
- if you become involved in a new business, company or trust.
Please contact one of the experienced team at RBF Law if your circumstances have changed and you need to update your Will.
Can I challenge a Will?
It may be possible for you to make a family provision claim if you are a spouse, child or dependant of the deceased and adequate provision has not been made for you in the deceased’s Will in the eyes of the law. If this is the case then there are strict time limits to follow otherwise you may be prevented from taking any action. It is essential that you give written notice of your intention to make an application to the deceased’s personal representative within six months of the date of the deceased’s death. You are then required to file and serve an application on the deceased’s personal representative within nine months of the date of the deceased’s death.
You may also challenge a Will if:
- it is alleged the deceased’s Will was not properly executed or there was evidence it was tampered with;
- the deceased’s Will was not the final Will;
- the deceased was influenced or tricked into creating or signing the Will by another person;
- the deceased was incapable of making the Will; or
- the deceased’s Will has been incorrectly administered.
Please contact one of the team at RBF Law if you feel you have been unfairly left out of a Will or if you wish to challenge a Will.
How is a deceased estate administered?
If you have been appointed an executor of a deceased estate then one of the RBF Law team can assist you and explain your legal duties with administering the estate and provide you with assistance in preparing and filing an Application for a Grant of Probate.
What is probate?
Before dealing with estate assets, an executor should ensure they hold the appropriate authority to administer the deceased’s estate. A Grant of Probate is a document produced by the Supreme Court of Queensland certifying that it recognises the executor’s authority to deal with the deceased estate. Failure to obtain Probate may leave an executor liable to beneficiaries if it is later shown that the executor was not the appropriate person to be administering the deceased’s estate.
What is business succession planning?
If you are a director or shareholder of a company then you will not be able to rely on your Will or a Power of Attorney to control company assets or realise the value of the company. It may also not be possible for you to readily transfer your shareholding. Have you also considered what would happen to your business if you or a business partner died? Would the business cease, be sold, or continue? You should therefore give careful consideration to additional legal documents to be used to create such obligations. This may involve amending your company constitution or a shareholder’s agreement or a buy-sell option agreement for you and your business partners. Our team at RBF Law will work with you and other professional advisors such as your accountant, financial planner and insurance adviser to assist you in achieving a complete business succession plan.
Disclaimer: This information is a guide only and is not a detailed explanation of the law. This information should not be used, treated or relied upon as proper legal advice and you should contact a solicitor before making any decisions concerning your requirements.