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Estate Law

Will

A Will is a legal document that sets out how you want your assets to be distributed in the event you were to pass away.

A properly drafted and executed Will can give you a variety of options and control over how your assets will be dealt with. For example:

  • You can choose the people who will carry out your wishes in your Will (known as your Executor/s);
  • You can give specific gifts to people such as heirlooms, cash, property, business or other investment interests;
  • You can appoint guardian/s for any infant children;
  • You can set up Testamentary Trusts;
  • You can put in place mechanisms to ensure the continuation of business arrangements; and
  • Many more.

While a Will generally deals with the majority of a person’s assets, however there are some items that may not be covered such as superannuation or assets owned as joint tenants.

At Martens Legal we offer an easy and cost-effective approach to Will making. We offer our clients convenient and fixed price initial appointments, whether it be in person, in the comfort of their own homes, by phone or Skype.

Letter of Wishes

A Letter of Wishes is a confidential document that can be written to supplement a Will.

Whereas the contents of a Will are legally binding, the contents of a Letter of Wishes are not. It is instead intended to provide guidance about the wishes in your Will to your Executor/s or Trustee/s of a Testamentary Trust. For example, a Letter of Wishes can deal with a range of issues including:

  • The location of important documents such as deeds, title records and financial information;
  • Any wishes or directions as to how infant children should be cared for;
  • Directions in relation to funeral arrangements and burial; and
  • Wishes in relation to assets which you may have effectively controlled during your lifetime, but will not form part of the Will such as superannuation funds or assets in family trusts;
  • The names of family, friends or advisors that assistance should be sought in relation to financial planning, accounting services, legal advice or other matters; and
  • Any other matters that you would like your Executor/s or Trustee/s to take into account.

Power of Attorney

A Power of Attorney is a formal document giving another person the authority to make legally binding decisions on your behalf. That person is called an ‘attorney’.

You can appoint more than one attorney and set clear guidelines, conditions or limits in relation to how and when your attorney can use their authority.

There are two types of Power of Attorney:

  • General Power of Attorney, which is used to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you’re going overseas and need someone to sign documents, sell your house or pay your bills.
  • Enduring Power of Attorney, which is used to appoint someone to make financial and personal decisions on your behalf if you become unable to make your own decisions, such as if you lose capacity to make decisions or you have failing cognitive health.

You can change or cancel your existing Power of Attorney at any time should you wish to so long as you have the capacity to understand the decisions you are making at the time you revoke it.

Advance Health Directive

An Advance Health Directive is a document that states your wishes or directions regarding your future health care for various medical conditions. It comes into effect only if you are unable to make your own decisions.

In the document, you can give specific instructions about certain medical treatments, such as whether you want to receive life-sustaining measures like tube feeding or resuscitation to prolong your life. You can also outline the quality of life that would be acceptable to you.

The best time to make an Advance Health Directive is now. However, it’s particularly important to make one if:

  • You’re about to be admitted to hospital; or
  • You have a medical condition that could cause your ability to make decisions to be affected.

Superannuation Nomination

Your super does not automatically pass under your Will. Instead, it is governed by the agreement that you entered into with the trustee/s of your superannuation fund and the relevant legislation.

To have control over who will receive your super you must make a document called a ‘Nomination’. Without a valid Nomination in place, your superannuation fund will decide which one or more of your dependants and/or legal personal representative (ie. your Executor/s) receive your super.

It is not a simple matter of nominating a beneficiary. There are different types of nominations that will be available depending on your superannuation fund, such as:

  • A General Nomination, which is used by your superannuation fund as a guide only;
  • A General Binding Death Nomination, which will lapse after three (3) years unless it is confirmed, modified or revoked within that time; or
  • A Non-lapsing Binding Nomination, which will not lapse unless it is modified or revoked.

Advantages of a Nomination therefore include:

  • Certainty that your super will be paid in accordance with your wishes;
  • Tax advantages by paying super direct to certain dependants such as your spouse or child; and
  • Less likelihood of a successful challenge by a disgruntled beneficiary.

Testamentary Trusts

Testamentary Trusts are trusts created by a Will that is designed to provide a greater level of control and protection over the distribution of assets to beneficiaries.

A Trustee is appointed under the Will to hold those assets in accordance with the terms of the trust.

There may be significant tax advantages in taking an inheritance through Testamentary Trusts, particularly where the beneficiary has:

  • A high personal marginal tax rate;
  • A partner on a lower income;
  • Minor children and grandchildren; and/or
  • A tax-free threshold;
  • Children or grandchildren with no, or lower, taxable income.

Another common use for Testamentary Trusts is when a person wishes to ensure that a beneficiary’s inheritance is protected and preserved from:

  • Waste and dissipation by the beneficiary; or
  • Claims on the beneficiary’s assets due to personal or commercial relationship breakdown.

Including Testamentary Trusts into a Will may not be relevant to every situation but they offer valuable advantages in many cases over a simple Will.

Fees Guide

Find out more about our Estate Law fees.