There are many more issues to consider than just your Will.  In fact, the majority of “your assets” may not even be part of your estate.

It is not uncommon for the majority of your assets to be property owned as joint tenants*, assets owned by Family Trusts and Companies, and your interest in superannuation funds – items which may not be affected by your Will.

As Wills and Estate Planning Lawyers, we encourage our clients to take control of their family’s future by ensuring all the necessary safeguards in place.

1. Personal Insurance

A dependable supply of finance is essential to ensure that you, your family and your business protect your assets. Where illness, injury or death reduces or eliminates your family’s income, you need money from insurance policies or from your own savings and investments.

Too often investors ignore the possibility of events occurring that are actually relatively common – such as ill health, accident or injury. Where insufficient funds are available, assets may need to be sold to finance the family’s expenses.

Where you do not protect your assets properly, your financial plans may completely unravel and caused severe hardship and loss.

Talk to an insurance expert regarding the suitability of the following insurance policies:

  • Life Insurance
  • Trauma Cove
  • Director’s or Office-holder Insurance
  • Income Protection Insurance
  • Business Expense Cover
  • Key man insurance
  • Total & Permanent Disability
  • Professional Indemnity Insurance
  • Public Liability Insurance

2. Last Will & Testament

Your Will provides for the distribution of the assets owned in your name at the time of your death to your beneficiaries (amongst other things).
If you do not have a valid Will, then the laws of intestacy will apply.

Refer to our Top 10 Questions regarding Wills.

Where property is owned jointly as tenants in common, the deceased owner’s share will be distributed in accordance with their Will. Where property is owned as joint tenants, the deceased owner’s share will be transferred to the surviving owner. In such a case, the property is not part of the deceased’s estate and therefore the Will does not apply.

You need to consider whether a basic Will is appropriate for your circumstances. It is now increasingly necessary for a more comprehensive estate plan to be put into place.

A testamentary trust may ensure that your beneficiaries interests in your estate are better protected from attacks from estranged spouses, creditors, bankruptcy trustee or perhaps even themselves due to current or possible future financial or behavioural problems.

3. Testamentary Trusts

A Testamentary Trust is not a technical term, it simply refers to a trust which is established by the Will.

A Testamentary Trust should be considered where you want to better protect your estate for the benefit of your family. Every person’s circumstances has to be considered individually. There is no single solution for everyone.

Estate planning often involves considerations across many generations of a family. You must think more widely than just your own estate planning arrangements.

A common occurrence can involve three generations, with (1) older grandparents, (2) their children and (3) adult grandchildren entering into relationships and marriage.

Where for example you are the second generation and are likely to be a beneficiary under the Wills of one or more of your parents, you should recommend that your parents obtain advice as to whether a Testamentary Trust would be worthwhile and of benefit to you – and perhaps any of your siblings.

Examples where a Testamentary Trust may be considered by parents include:

  • where you (or your siblings) are involved in a Family Court dispute with your spouse, or there is a possibility that a dispute may arise in the future;
  • where you (or your siblings) owe money to a creditor, or there is a possibility that a debt may arise to someone in the future;
  • where you (or your siblings) work in a business or profession where there is a risk of litigation being commenced against you;
  • where one of your siblings suffers from a mental incapacity or impairment, or is addicted to drugs, or is unable to control their spending;
  • where you (or your siblings) have or may have in the future, children under the age of 18 years, where income of the estate may be distributed to each child – therefore utilising the benefit of the tax-free threshold.

4. Family Trusts, Companies & Superannuation Funds

Your interest in any Family Trusts, Companies, or Superannuation Funds requires separate consideration as part of your estate planning review.

5. Enduring Power Of Attorney

  • A Power of Attorney authorises a trusted person to act on your behalf in a wide variety of areas, however it ceases to be effective where you lose mental capacity.
  • Where you were to lose your mental capacity due to accident or illness; a spouse, friend or relative would be unable to act on your behalf or assist you with any of your personal, legal or financial affairs unless you had previously given them the written authority.
  • An Enduring Power of Attorney (EPA) is an important and powerful document which authorises someone to act on your behalf in these circumstances.
  • When you decide to take action, ensure that you engage a Queensland Lawyer to assist you with the creation of the Enduring Power of Attorney – there are many more issues than simply completing a form!
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