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Estate Planning

Estate Planning is much more than just writing up a will.

An Estate Plan involves more than just deciding how to distribute assets upon your death. Even a very basic Estate Plan involves a consideration of the preparation of:

your Will;
a Power of Attorney; and
an Advance Health Directive.

Often people are unaware of the crucial issue of what assets their Will actually controls or governs. A Will only governs assets owned solely by an individual at the date that person dies. Assets not controlled by a person’s Will can be significant and include:

any asset owned jointly with another person;
assets owned in a family company;
assets held within a family trust;
the proceeds of any life insurance policy paid direct to the beneficiary (owner) of the policy; and
superannuation benefits.

People are often surprised to learn that their superannuation (even if the superannuation fund is self managed) is not caught by their Will. This is also the case even if you are drawing on your superannuation as part of any retirement plan. An Estate Plan needs to carefully consider how your superannuation will be distributed upon death as increasingly, substantial assets are being held in superannuation funds.

Additionally, superannuation funds often offer life insurance cover to members of the fund, so your superannuation will include not only monies paid into your super account by you or your employer but any insurance component as well.

Usually your superannuation fund will permit you to nominate who is to receive your super and in what proportion(s). In general terms, your superannuation can only be paid to your “Dependents” or into your estate. “Dependents” are limited to:

your spouse (including defacto);
your children;
a person with whom you were in an “interdependent” relationship; or
people who were dependent on your financially.

Usually your superannuation fund allows you to nominate who is to benefit through either a “binding” or “non-binding” nomination. A binding nomination binds the superannuation fund to pay the benefit as you have nominated.A non-binding nomination is treated only as a guide to the superannuation fund. Any nomination needs to be kept up to date and even a binding nomination will generally lapse after three (3) years. A binding nomination can be a useful tool in removing uncertainty about who will benefit from your superannuation upon death which should avoid costly disputes as to how it will be paid. This can be important where issues of Estate Planning arise after a relationship breakdown and subsequent remarriage.

Obtaining advice in relation to your Estate Plan will help you decide on the best approach and what is most appropriate for your individual circumstances. Call Cec O'Dea or Trent Wakerley for more information about Estate Planning.

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