COVID 19 – Is it time to review your estate planning?

Given the impact of the Coronavirus pandemic, it might be time to review your estate planning documents to ensure that your wishes are carried into effect. We do recommend that you review your Will every twelve (12) months, or whenever your circumstances or the circumstances of a person mentioned in your Will change, for example, when a beneficiary, executor, trustee or guardian dies, or when a trustee becomes bankrupt or loses capacity.

There are a number of significant life events that can affect your estate planning. These include:

  1. If you separate or become estranged from a spouse (including a marital partner or civil partner), these events generally will not have the effect of automatically revoking your Will, any enduring power of attorney, Binding Death Benefit Nomination/s or insurance beneficiary. 
  2. If you separate from a de facto partner (including same sex), then this may revoke your Will, but will not revoke your enduring power of attorney, Binding Death Benefit Nomination/s or insurance beneficiary.
  3. If you enter into a de facto relationship (including same sex), then this will not revoke your Will, your enduring power of attorney, your Binding Death Benefit Nomination/s or insurance beneficiary.
  4. If you divorce, marry, or commence or terminate a civil partnership, your Will and/or any enduring power of attorney may be automatically revoked (either partially or fully).  However, Binding Death Benefit Nomination/s and insurance beneficiary/ies may not be affected.
  5. If you have a child then this does not have the effect of revoking your Will, Binding Death Benefit Nomination/s or insurance beneficiary. That child may be entitled to make a Family Provision Application against your estate which has the result of significant costs and delays to the administration of your estate. However, if you have a Binding Death Benefit Nomination and/or insurance beneficiary nominated which is valid at the date of your death, then that child may not be entitled to receive the proceeds of your death benefit or insurance payout.
  6. If a beneficiary mentioned in your Will dies and there are no succeeding beneficiaries referred to in your Will, then their entitlements may be distributed in accordance with the intestacy rules. Similarly, if a beneficiary mentioned in your Binding Death Benefit Nomination/s dies, then your superannuation death benefits will be paid to a spouse, child, dependent or your estate as determined in the superannuation trustee’s absolute discretion. Similarly, if your nominated beneficiary for an insurance policy dies, then the insurance company may pay to another person or your estate (depending on the terms of your insurance policy).

If any of these life events have occurred, it will be necessary for you to have your estate plan reviewed and potentially make a new Will, enduring power of attorney, relevant Binding Death Benefit Nomination/s and Insurance Beneficiary Nomination.

Binding Death Nomination/s in relation to any Superannuation Policies/ Pensions held by you

We confirm that if you do not have a valid Binding Death Benefit Nomination in place at the date of your death, then the trustee of your superannuation fund has the discretion as to whom it may pay your superannuation death benefits, within a range of eligible persons (such as a spouse, child, dependent or your estate). The trustee may decide to pay your superannuation death benefits in a manner that is not in accordance with what you ultimately wanted. Accordingly, it is important to have an up-to-date valid Binding Death Benefit Nomination at all times.  

We do recommend that you make a Binding Death Benefit Nomination (subject to your accountants or financial advisors advice) so that your estate plan can be carried out in accordance with your instructions. If you do not make a Binding Death Benefit Nomination then this may affect the value of your estate and may mean that your superannuation death benefits are not paid to your preferred beneficiary/ies.

Where lapsing Binding Death Benefit Nomination’s made

Your Binding Death Benefit Nomination will lapse three (3) years after the date it was made. We recommend that you diarise this date and, at least a month prior to the nomination lapsing, you arrange for the superannuation fund to have the necessary form/s sent to you to have the nomination renewed. Failing to remember this date may affect the value of your estate and may mean that your superannuation death benefits are not paid to your preferred beneficiary/ies.

If SMSF and accountant/other person doing Binding Death Benefit Nomination

We confirm that if you have a self-managed superannuation fund and your accountant/financial adviser is preparing same your Binding Death Benefit Nomination must strictly comply with the terms of your superannuation fund trust deed and the superannuation legislation in both form and procedure. Failing to comply with both form and procedure for making a Binding Death Benefit Nomination for your self-managed superannuation fund may mean that any such nomination will be invalid. This may affect the value of your estate and may mean that your superannuation death benefits are not paid to your preferred beneficiary(s).

Advance Health Directive

We confirm the purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.

Life Insurance Policies

We recommend you seek advice in relation to beneficiary nominations for any life insurance policies held by you.

Review of your estate planning in terms of your businesses, companies and or trusts

We confirm that if you have any businesses, companies and/or trusts this may necessitate review of your estate planning.

Please telephone our office if you would like to make an appointment to review and update your estate plan.

Estate Planning

How to prepare for your first appointment with us to prepare your Will & Enduring Power of Attorney

It is important that you bring identification with you, preferably your Drivers Licence and your Passport.
If you are unable to bring these, please advise us and we will advise alternate identification documents.

Depending on your personal circumstances, we will require you to bring:

  • Your most recent Superannuation Statement
  • A list of your assets and liabilities e.g. real property, vehicles, shares/investments, banks accounts and insurance policies
  • A list of whom you wish to be the Executors of your Will, including their full name legal name and address
  • A list of whom you wish to be the beneficiaries of your Will, including their full legal name and address
  • A list of whom you wish to be the attorneys of your Enduring Power of Attorney including their full legal name and address

Other information you may want to think about:

  • Your wishes in relation to organ donation
  • Guardianship of any children under 18 years of age
  • Your wishes in relation to cremation/burial
  • How you want your estate distributed e.g. specific gifts/balance of your estate

Once you have had your Will and Enduring Power of Attorney signed and witnessed, it is important that you let your family know the location of these important legal documents.

Don’t wait to get your Estate Planning in order, call us on 07 3278 1888 or fill in the form below and we will provide you with a FREE quote

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    Can you dispute a Will?

    Do you consider you should have received an inheritance or were treated unfairly in a will?

    If so, you may be entitled to make a claim against the estate under the Succession Act 1981 (QLD).

    Under the Act, the following categories of “eligible persons” are entitled to challenge a will and seek further provision from the Estate:

    • A Husband or Wife of the deceased person;
    • A de facto spouse of the deceased person provided that person was living together as a couple on a genuine domestic basis for a continuous period of at least 2 years as at the date of the deceased person’s death;
    • A child of the deceased person (including an adopted child or step-child);
    • A former spouse of the deceased person. For instance, a separated spouse who is not yet divorced and was continuing to receive maintenance from the deceased person; or
    • A person who was wholly or substantially maintained by the deceased person, who was a parent of the deceased or a parent of a child under 18 years of the deceased person or a person under 18 years of age.

    In Queensland there are time limitations in which an eligible person may challenge a will:

    • An eligible person has an obligation to notify the Executor of their intentions to challenge the will within 6 months from the date of death;
    • If the matter cannot be resolved through negotiations, then the eligible person must file and serve court proceedings on the Executor within 9 months from the date of death;
    • If the eligible person does not comply within those time limits, then they may be prevented from contesting the Estate without first obtaining the Court’s permission to institute legal proceedings, which is very difficult to obtain and only granted in exceptional circumstances.

    We are offering a 10% discount on our professional fees for new clients during December 2018. Call us now on (07) 3278 1888 for a FREE no obligation quote and initial advice.