My Estate Plan Workbook

Transcription

1 My Estate Plan Workbook

2 Estate Planning A Will is essentially a plan made in advance outlining whom you want to receive the things you own after you die. However, an Estate Plan is much more than that and may include: Instructions for your care if you become disabled or unable to care for yourself before death. Naming a guardian for any minor children. Providing for family members with special needs without disrupting government benefits. Helpful Information This document is to provide details around what an Estate Plan is and the various components that are involved. Please read this document and consider how the information provided may be applied to your circumstances. This information will be used in preparing Estate Planning documents Will, Enduring Power of Attorney and more. If you have any questions or wish to discuss any part of this document please contact McColm Matsinger Lawyers or Wealthmed. Providing for loved ones who might be irresponsible with money or who may need future protection from litigation, creditors or relationship breakdowns. Providing for the transfer of your business at disability or death. Minimising taxes, Court costs and unnecessary legal fees. Being an ongoing process, not a one-time event. Your plan should be reviewed and updated as your family and financial situations change over your lifetime. Get Started Planning Enter your contact details of Client 1 of Client 2 2 My Estate Plan Workbook

3 Do I need a Will? Click here for our e-book A Will is generally the most important document any person will sign and is at the centre of your Estate Plan. It is important that an Estate Plan is specifically tailored to your needs and circumstances during your lifetime. A sensible plan will aim to minimise tax, provide asset protection (as reasonably expected), cater for the circumstances of beneficiaries and effectively utilise existing structures, such as superannuation funds and trusts. After death only a Court can alter the terms of a Will and, unless a Court intervenes, the Will regulates how the deceased s assets are to be finally dealt with. A Will can be challenged for a number of reasons ranging from improper execution of the document through to complaints that it did not adequately apportion the deceased Estate to potential or actual beneficiaries. Sound Estate Planning will ensure disputes or errors in its execution are minimised and the beneficiaries catered for appropriately. Executors The Executor of a Will is responsible for carrying out the wishes of a person after they die. The role of the Executor is to manage the Estate within the terms of the Will and protect the assets of the Estate. The Executor of an Estate must comply with various laws and rules that govern the administration of deceased Estates. Many people, when nominated as an Executor, are unsure of what is expected of them. The duties of any Executor can be complex and demanding and require an understanding of the law, tax and accounting requirements. An Executor can outsource these skills from professionals. This document outlines the main decisions required to construct an effective Estate Plan. Please read through the information provided and answer questions and make notes in the sections available. This document will form part of our discussion at your Estate Planning appointment. It is important your proposed Executor is aware of your nomination and understands what the Executor s role entails. There are many steps involved in being an Executor. The duties of any Executor may include: Attending to funeral arrangements. Locating of the Will. Applying to the Supreme Court for a Grant of Probate of the last Will (Probate is a formal document that confirms the Executor and gives them permission to administer the Estate). Determining the beneficiaries. Collecting assets. Making sure all claims and debts are received, assessed and paid if substantiated. Distributing assets according to the terms of the Will, including managing longer term trusts. Preparation and management of accounts. Preparing and lodging taxation returns. Defending litigation. My Estate Plan Workbook 3

4 Typically it is often helpful to select someone who knows you and your family. Someone who would make decisions like you. Choosing an Executor? In addition to honesty, organisation and communications skills, other important considerations should also play into who you choose as your Executor. For instance, family dynamics are extremely important in end of life issues. Who you choose can lead to in-family squabbling and Will contests, so carefully consider the impact of your choices and seek advice if necessary. Whether they should or not, people read into your decisions and assume you are making judgments regarding their worthiness (e.g. naming the youngest child as the Executor of a Will because he or she is a lawyer or accountant may still be construed as favouritism). Another basic consideration is the Executor s location. Things such as Court appearances, checking mail and property maintenance can be considerably more difficult if the Executor does not live near to where the majority of the assets are located. Your choice of Executor? Executor for Client 1 Executor for Client 2 If your first choice for Executor couldn t take on the responsibility, who would you want to appoint as your alternate Executor? Alternate Executor for Client 1 Alternate Executor for Client 2 4 My Estate Plan Workbook

5 Specific Bequests List any particular items that you would like to give to your beneficiaries. Items for Client 1 Items for Client 2 The rest of your Estate For the remainder of your Estate, list the beneficiaries and what percentage, amount or other assets you would like them to receive. For Client 1 to whom to whom to whom to whom to whom to whom The Will can be as detailed as you like and can include specific items. An example could be as simple as: my surviving wife/husband will receive all my assets Or can list numerous beneficiaries receiving a percentage of assets and/ or specific amounts and specific items. John will receive 25% of my assets and my Omega wrist watch, or Jane will receive $100, and my wedding rings For Client 2 If both Clients 1 and 2 have died Please list alternative beneficiaries Often when both are deceased the Estate is shared equally between the surviving children: Our assets should be divided equally between my surviving children, in addition John will receive my Omega wrist watch, Jane will receive the wedding rings etc If all of the above beneficiaries have died Please list alternative beneficiaries In the event of a truly catastrophic event then often the beneficiaries will be parents and/or siblings: Our assets would be shared equally between our two sets of parents, or Our assets would be shared equally between our siblings. My Estate Plan Workbook 5

6 Key issues to be aware of when deciding how to structure your Estate Plan: Is there anybody who could be dissatisfied with the distribution of my Estate and might seek to challenge the provisions of the Estate Plan? This would include any children or grandchildren, former spouses and anyone to whom you have provided financial assistance in the past, regardless of whether or not you still have any contact with them. Yes No Is there anybody in my family with special needs (such as disabilities) who needs to be provided for in my Estate Plan? Yes No Key issues and considerations There are situations which may require particular attention when putting in place your Estate Plan. If your responses would be yes to any of these points (left), please provide details. Issues of concern to me Are any of my assets located in other jurisdictions? If assets are located overseas, your Estate Plan may need to specifically cater for this. Yes No Are any of the intended beneficiaries of my Estate exposed to personal or business risk? For instance, are any of the intended beneficiaries encountering matrimonial difficulties or involved in professions which may result in them getting sued? Yes No Do I have any trusts, companies or self-managed super funds? Additional steps may need to be taken to ensure that control of these entities pass as you intend. Yes No 6 My Estate Plan Workbook

7 Guardians for Minors Ordinarily, a child s surviving parent will automatically be the child s Guardian. However, it is necessary to make provision for circumstances in which both parents have died. What are the powers and responsibilities of a Guardian? A Guardian is responsible for the daily and long term care and welfare of your child and for making important lifestyle decisions on their behalf. The Guardian must ensure that the child is adequately housed, clothed and educated. The guardianship of minor children is an important and often onerous task and the appointment should be thought through carefully. You should discuss the appointment with your intended Guardian and consider carefully whether: They are prepared to accept the responsibility. Although appointing a Guardian in your Will is not binding, it is very important. The Court has an overriding discretion to appoint a different Guardian for your child where it considers this to be in your child s best interest, but will otherwise follow parents wishes. They are of a similar age to you. They understand your views on how you wish your children to be raised. You may include in your Will (or in a separate Letter of Wishes) an outline of any specific factors you want your guardians to consider in the raising of your children. A Guardian does not have any control over, or power regarding, the assets of your Estate or potential trust funds that are established for your children under your Will. The Executor or Trustee you nominate in your Will has this responsibility. While this separation of duties may act as an effective check and balance, it is important that the Executor/Trustee and Guardian are able to communicate easily and work together in the best interests of your children. Who would you want to select as Guardian for your children? of Guardian for the children of Client 1 of Guardian for the children of Client 2 Who would you want to select as a Guardian for your child? My Estate Plan Workbook 7

8 Who should you appoint? Usually a person appoints a spouse, a close friend, or someone they trust to manage their affairs responsibly. However, if your financial affairs are complicated, you should consider appointing someone with the ability to deal with complex financial arrangements such as an accountant or solicitor. Financial Power of Attorney A Power of Attorney is a document empowering a person (or persons) to act on behalf of another with respect to their financial arrangements. Powers of Attorney can be either general or limited. Under a General Power of Attorney, the Attorney is able to do nearly all things the person giving the power could legally do. Under a limited Power of Attorney, the power is restricted in some way. For example, the Attorney may be appointed only for a certain time or only to perform certain acts. Enduring Powers of Attorney Powers of Attorney generally cease to be effective when the giver loses mental capacity. An Enduring Power of Attorney is one that remains effective after the giver has lost mental capacity. It will remain in force until death, unless it is revoked while the giver has the mental capacity to revoke it. Do you need an Enduring Power of Attorney? If you have not granted an Enduring Power of Attorney, someone (e.g. your spouse, son or daughter) will need to apply to a Court or a government tribunal to be appointed. It is likely that an officer from the government will also need to be involved in the management of your affairs. Who would you want to select as your Power of Attorney? Power of Attorney for Client 1 Note: some people are ineligible to be your Attorney or Guardian including minors, someone who is or has previously been bankrupt (for Financial matters), someone who is your paid carer or health care provider (for health matters) and someone who provides a residential service to you (for lifestyle matters). Power of Attorney for Client 2 If your first choice couldn t take on the responsibility who would you want to appoint as your alternate Power of Attorney? Alternate Power of Attorney for Client 1 Alternate Power of Attorney for Client 2 8 My Estate Plan Workbook

9 Health/Personal Power of Attorney An Enduring Power of Attorney (Medical) allows you to appoint someone to make lifestyle and healthcare decisions relating to your care and wellbeing if you lose capacity due to illness or injury. This covers all the powers that a parent may exercise in respect to his or her child and includes the power: To decide where you are to live, whether permanently or temporarily. To decide with whom you are to live. To consent to any health care that is in your best interests. To restrict visitors to such extent as may be necessary in your best interests. The appointment begins only if and when you are unable to make decisions (lose legal capacity) about your lifestyle, either temporarily or permanently. Legal incapacity means that a person is unable to understand the nature of a document and its effect or is unable to communicate in any way. Being physically incapacitated, for example being paralysed and being unable to sign documents, does not necessarily mean that person is legally incapacitated. The person may still be able to understand the document and its implications. Who would you want to select as your Power of Attorney (Health/Personal)? Power of Attorney for Client 1 Power of Attorney for Client 2 If your first choice couldn t, who would you want to appoint as your alternate? Alternate Power of Attorney for Client 1 Alternate Power of Attorney for Client 2 Who should you appoint? Usually a person appoints a spouse, a close friend, or someone they trust to manage their affairs responsibly and who is aware of their personal beliefs and lifestyle preferences. Note: There are some people who are not eligible to be an Attorney. A minor or someone who is bankrupt cannot be appointed. Also, you cannot appoint someone as an Attorney if he or she is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, your health care or treatment, or provides for your accommodation. My Estate Plan Workbook 9

10 General Notes Are there any other notes or considerations that need to be taken into account as part of your Estate Planning arrangements? My My Estate Estate Plan Plan Workbook

11 What to do now Once you have completed this document, send it to McColm Matsinger Lawyers. Make an appointment with us to discuss your legal documents and needs. Finalise, sign and arrange storing your documents in a safe place. My Estate Plan Workbook 11

12 Contact Us McColm Matsinger Lawyers Phone: Web: Level 4/57 The Esplanade, Maroochydore PO Box 737 Maroochydore QLD My Estate Plan Workbook