Wills and Estates


Overview
Simple Will
Enduring Powers of Attorney
Insurance and Superannuation
Managing a simple Estate
Estate Planning

Overview

Wills are simple until they aren’t. Good, hardworking people like us want to be actively involved in our life’s direction and write our own story. We don’t want to go with our music still in us.

We want a sense of being part of things and making special things happen. We need to be challenged, and have a feeling that we are steering our ship, instead of just reacting and wondering what happened as life flies by so fast.

We want to play our part, have our chance and be bold enough to build something for our families and community.

We want to have enough and be safe and we don’t want the assets we’ve built up over a lifetime to go to waste. We want them to go to the people we care about and love.

The more we’ve climbed the mountain, the more we’ve seen and maybe accumulated, the more we benefit from writing our story down and making sure our people are looked after. We’re looking forward to capturing that story with you.

And if you’re the one helping a friend or family member after their story is already done, we’re here if you’d like a helping hand to carry out their wishes.

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Simple Will

John wanted to make sure his assets, including superannuation and insurance money went to his children and not his ex-wife. He said that they had already been through that in their property settlement.

His mother had been happy with the Will Clearman Lawyers prepared for her, and John wanted help to prepare his Will before his trip to the Great Barrier Reef. We agreed that there’s no need for Wills to be complicated and hard to understand. They can be clear and simple and get the job done thoughtfully and well.

We sent him our Wills and EPOA Helpful Guide and talked through the important details, including arrangements for his insurance and superannuation monies over a Zoom call. Later that week we sent John a draft Will asking for some further information to finalise his Will and the Enduring Power of Attorney he had asked for.

Once John was happy with the Will he made a time to come in and sit down with us to witness his signatures. He left his original Will in our safe custody and then took the Enduring Power of Attorney to his attorneys to sign before returning it to our office.

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Enduring Powers of Attorney

Evan’s mother and father weren’t getting any younger so they decided to have Enduring Powers of Attorney drawn up. They carefully chose trusted family and friends to be their Attorneys because being responsible for significant money and health care decisions can be a big job.

Very luckily, their adult children also decided to have Enduring Powers of Attorney prepared because their son Evan lost capacity soon afterwards in an accident and now cannot make new short-term memories. He is in care and has been dependent on his sister Peta to kindly manage his arrangements for the last ten years.

We normally prepare two original Enduring Power of Attorney documents. This is because the Titles Office keeps one original permanently if the Attorney wants to dealBuy, sell, mortgage etc with property. This happens for example if someone needs higher care and the family home is sold to raise funds for aged care assistance.

Once we’re discussed some of the most important items including choosing suitable attorneys we prepare the documents. After clients come in to have their signatures witnessed, they take the documents to have the attorneys sign and then return the Enduring Power of Attorney for us to hold in safe custodyHeld safely without charge and released if correct authority provided.

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Managing a simple Estate

Tania’s mother had just passed away and she wasn’t really sure what to do next. Because she was named as the ExecutorPerson responsible for gathering in the assets and making sure liabilities are paid then distributing any surplus according to the Will in the Will, she knew she had to arrange and pay for the funeral but she hadn’t turned her mind to the financial side yet.

Tania and her sister came in and sat with us and we just talked through the first steps to gathering in the assets and taking care of any liabilities. Although we talked through the important timeframes to guard against a Family Provision Application, they were lucky that the family got along well and it was very unlikely that there would be any claims against her mother’s estate.

Because there were some significant assets, we made a to-do list together including first advertising and then applying for a Grant of ProbateConfirmation by the Supreme Court that the Will is valid and writing to the banks her mother had used. We also agreed we’d write to the retirement village, make arrangements for the shares to be transferred to the beneficiaries and they would contact an excellent agent recommended by Clearman Lawyers to sell their mother’s holiday place in Noosa.

As usual it took about 12 weeks to receive the Grant of Probate from the Supreme Court and then some time for each of the asset holdersincluding banks, retirement villages, insurance companies and superannuation trusts to make their internal enquiries to process the requests to release funds to Clearman Lawyers’ trust account. We also assisted with the Titles Office requirements to transfer her mother’s investment properties. We kept records of each transaction and provided those records to Tania about every two weeks so she was always up to date.

Tania took care of the sentimental items her mother had wanted to give to family members and we referred Tania to a very good accounting firm to assist with the date of death tax return.

When the funds were all held in trust and Tania approved the breakdown, we disbursed the funds to the beneficiaries as her mother had wanted.

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Insurance and Superannuation

Insurance For many people it’s a surprise to find out that Wills do not automatically control how insurance money is paid.

We strongly recommend checking with your insurance provider(s) to make sure you’re happy with your nominated insurance beneficiaries. We recommend that you be especially careful if a beneficiary might struggle with money or relationships. We’re here to talk if you’d like help.

Depending on the circumstances (including the insurance Trust Deed terms) you can generally either nominate:

1. “Legal Personal Representative” which means that you want (all or part of) the funds to go to your estate; or

2. All or part of the funds to chosen beneficiaries (which could potentially include super).

Superannuation For many people it’s a surprise to find out that Wills do not automatically control superannuation (whether retail like Sunsuper or Q Super or a Self-Managed Superannuation Fund).

We strongly recommend checking with your superannuation provider(s) to make sure you’re happy with your nominated superannuation beneficiaries.

Who can be a super beneficiary? The super fund trustee has a discretion to choose between a fixed / limited group of “Dependants”. Dependants are limited to: the spouse of the person, any child of the person and any person with whom the person has an “interdependancy relationship” (last category can become complicated quickly).

Nominating beneficiaries There are broadly two ways to nominate superannuation beneficiaries: Binding or non-binding and the names explain it clearly. Depending on the circumstances (be especially careful if a beneficiary might struggle with money or relationships) you can either nominate (request) OR nominate (binding):

1. “Legal Personal Representative” which means that you want (all or part of) the funds to go to your estate; or

2. All or part of the funds to a limited group of “Dependants”.

It’s important to weigh the pros and cons of making a binding nomination very carefully. Removing Trustee discretion can lead to unexpected outcomes including, for example, funds being paid to a bankrupt person and then being given to their creditors.

Confusingly

1. Retail superannuation binding nominations (Binding Death Benefit Nominations) expire after three years so need to be diarised and regularly updated. This can be tricky if, for example, someone lacks capacity to renew the binding nomination.

2. SMSF Binding Death Benefit Nominations (depending on the wording of the SMSF Deed) may not need to expire after three years. As always, read the Deed to be sure.

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Estate Planning

A good Will is an opportunity for us to see if we are on track or off track. It might show where we have some gaps in our strategy. It’s a gift to family and friends and also ourselves. I think a Will is our opportunity to write our last chapter from where we are now. It might be simple, aspirational or a grand series of interlocking documents which provide a blueprint for the start of the sequel. It’s up to you.

So Estate Planning is not only a boring cost only useful for when we’re gone. Wills are a measuring tool, an organisational tool and an accounting, an audit, an exam if you will and a record of what we did, who we knew and how effectively we negotiated reality including family, friends and the other people and organisations in our lives.

Give us a call and share your story.

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Disclaimer

This page is not intended to provide legal advice and does not create a client-lawyer relationship. This post is provided for general information purposes and should not be relied upon as a substitute for legal advice. If you need help with legal advice for your particular situation, please contact our office (details below or on ‘Contact’ page) and we’ll be happy to assist you.

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