Our Estate Planning Team can assist you to prepare a customised “Estate Plan” to address the critical issues for you.
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Your customised Estate Plan ensures your family, property and assets are protected if you suffer from a disability or die.
- Ownership options are essential as some assets may be more effectively owned individually, jointly as joint tenants, jointly as tenants in common, through a trust, self managed super fund or other entity.
- General and Enduring Powers of Attorney are required to appoint someone to act for you in relation to your finances and property if you are alive but are incapacitated and unable to make decisions for yourself.
- Advance Care Directives are required to appoint someone to act for you in relation to personal and medical decisions if you are alive but are incapacitated and unable to make decisions for yourself.
- Superannuation and Insurance options include Binding and Non-Binding nominations as well as consideration of the appropriate Total and Permanent Disablement, Income Protection, and Death Benefit policies available.
- Special Disability Trusts are a trust to provide care and accommodation to a child or other relative with a severe disability resulting in the threshold of assets and income generated by those assets being free of Centrelink.
- Gifts and Loans should be documented to avoid complications with your estate.
- Wills set out how your assets are dealt with upon your death in order to avoid the laws of intestacy. Our Team can assist in the preparation of “Standard Wills”, “Non-Standard Wills” or “Testamentary Trust Wills” which can provide significant tax and asset protection advantages.
- Blended Family considerations to address the unique position of families where the parents have children from different relationships.
- Statutory Wills are required in circumstances where a person lacks the capacity to make a Will such as due to dementia or injury.
- Registered Relationships – couples are now able to register their relationship in South Australia with Births, Deaths and Marriages, regardless of their sexual orientation or gender identity.
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Wills at Work
Most people know how important it is to make a Will but many people can not find the time to visit a lawyer or worry about their situation being too complicated. Our “Wills At Work” service allows us to collaborate with local businesses and their employees to help provide the time to create their Will during the working day. Our service is completely free to employers and provides the opportunity to add real value to employee benefits. It allows employees and their family to put a plan in place and to obtain the peace of mind in knowing that everything is taken care of for them and their families if something were to happen. We provide this estate planning service through an efficient and easy process at a reduced cost of the normal fees.
The Process
- Step 1 (Optional): We provide a complimentary session for your team to explain the basics of estate planning and our process.
- Step 2: Your team members schedule a time to meet with us either on-site or at our office.
- Step 3: We work with your team members to accomplish their estate planning goals.
- Step 4: Your team schedule a signing appointment to finalise their estate planning documents.
Contact us for further information about our Wills at Work service.
Call us on 8523 8400 (Gawler) or 8523 8444 (Tanunda) for a no obligation consultation with one of our lawyers or email us at legal@rudalls.com.au
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Questions to Consider
Why do I need a lawyer to prepare my Will?
While the “DIY Will Kit” or the Public Trustee Will may seem like an affordable option, the saying is “you pay for what you get”. Your family are worth more than that. Having a Will professionally prepared gives you the certainty of who administers your estate and who receives what. Dying “intestate” (without a Will) or with an out of date or poorly prepared Will means that you may leave being stress, worry and expense to your family. If you die without a Will, control of your estate and who receives your assets is determined by legislation and there are additional costs involved in applying for Letters of Administration and administering your estate. If all you want is a traditional (or “Standard”), no frills Will – we can assist you. While a traditional (or “Standard”) Will may meet your needs, there are potentially significant benefits that can be obtained in having a “Non-Standard Will” that addresses specific issues or a “Testamentary Trust Will”.
What is a Standard Will?
A Standard Will is one that is prepared following an initial appointment of up to 1 hour and which provides for a standard estate distribution which is defined as follows:
- Appoint an individual (for example spouse or partner) as executor with substituted executors including (where relevant) provision addressing that the Will is made in contemplation of marriage.
- Gift residuary estate to an individual (for example spouse or partner) substituting children in equal shares and grandchild provision provided that if no beneficiaries, then divide residuary estate among selected family members.
What is a Non-Standard Will?
A Non-Standard Will is one that provides for Standard Will provisions plus one or more of the following factors:
- An initial consultation longer than 1 hour or instructions provided over a number of consultations before finalising instructions.
- Where instructions or issues raised for discussion and advice provided by us contemplate any matters beyond the provisions of a Standard Will (regardless of whether a Standard Will is ultimately executed by you despite consideration of more complex issues prior thereto).
- Non-standard distributions.
- Clauses drafted to address specific circumstances for example blended families, control of trust structures, ownership of company structures, ownership of a SMSF, dealing with interfamily loans, and life estates.
What is a Testamentary Trust Will?
A Testamentary Trust Will is simply a trust that is established by your will and therefore does not take effect until your death. In a ‘standard’ will the person making the will gifts assets directly to the beneficiary whereas in a testamentary trust will they are gifted to the trustee of the trust for the benefit of a range of potential beneficiaries. A testamentary trust will can be designed to provide maximum flexibility to your beneficiaries as to how they receive their inheritance. It can allow for tax-effective distribution of capital and income as well as providing potential asset protection for your beneficiaries from third parties such as creditors and in Family Court property disputes. Testamentary trust wills are an excellent estate planning tool that should be considered for all clients irrespective of their financial position.
What is a Statutory Will?
A Statutory Will is a Will made for a person by a Court in circumstances where that person does not have the legal capacity to make the Will for themselves. Applications for Statutory Wills are increasing in South Australia and the Supreme Court had made a number of Statutory Wills in a variety of circumstances. Some people are unable to make a Will either because of conditions such as dementia or intellectual disabilities or illnesses.
What are the advantages of a Special Disability Trust?
A Special Disability Trust is a trust established for the benefit of a severely disabled person. Assets held in a Special Disability Trust, provided they are below the relevant threshold, do not count towards the beneficiary’s assessable assets (for the purpose of determining the beneficiary’s eligibility for a pension). Beneficiaries are able to retain up to 100% of their Disability Support pension or other social security benefits while receiving support towards the cost of care, accommodation and medical treatment which are often not completely covered by social security payments. An immediate family member can also transfer assets into the Special Disability Trust without having that transfer taken into account for the purpose of their own eligibility for a pension.
Why would I need a Protective Trust?
A protective trust in a Will can be appropriate for a range of beneficiaries, including those who are severely disabled, have a less severe disability such as Autism or Asperger's, have an addiction such as gambling, alcohol or drugs, are bankrupt or in danger of becoming bankrupt, are spendthrifts or are easily influenced by others. A testamentary trust with protective provisions in the Will allows you to benefit that person but provide control to another to ensure that the inheritance provided is used and maintained for the benefit of that person. If you have a severely disabled child or relative, we can assist you with establishing a Special Disability Trust. One key advantage of this trust is that assets held by it up to a certain threshold are immune from Centrelink income and assets tests. This is a sensitive and complex area where you need the advice of experienced estate planning lawyers.
What do I need to know about Powers of Attorney?
If an accident or illness prevented you from being able to make financial decisions, or attend to the payment of bills and expenses, you would want to have some level of control over how these transactions were carried out on your behalf. Due to the legal requirements of the Land Titles Office, financial institutions, telephone and power companies, if you are unable to attend to the transaction yourself, the person you have nominated requires the legal authority to do so. A Power of Attorney is a legal document which confirms your authority for a family member, friend or other trusted person to make financial decisions and enter into property transactions on your behalf. It is therefore one of the most important elements of your estate plan.
I have an Enduring Power of Guardianship, do I need an Advance Care Directive?
From 1 July 2014 you can document your wishes, preferences and instructions for future health care, end of life, living arrangements and other issues in an Advance Care Directive. The Advance Care Directive is a legal form which has been introduced in South Australia to replace an Enduring Power of Guardianship, a Medical Power of Attorney and an Anticipatory Direction. If you have these documents, we recommend that you schedule an appointment with us as soon as possible to discuss your estate planning requirements.
What do I do with my superannuation when I die?
In the event of your death, the payment of your superannuation benefit will in most cases be determined by a superannuation fund considering any directions that you have made through a death benefit nomination. By keeping your nomination(s) up to date you can make sure that the right people receive your superannuation promptly – this can remove considerable anxiety for your loved ones. It is important to bear in mind that there can often be significant insurance entitlements linked to superannuation which need to be taken into consideration. There are a number of nomination options available. The right one depends on your personal circumstances but include lapsing or non-lapsing binding nominations, non-binding nominations, and reversionary nominations for income streams and life time pensions. Binding nominations provide relative certainty in relation to estate planning decisions, removing the control otherwise held by a third party. This is because without a binding nomination the trustee of the superannuation fund has an absolute discretion in distributing death benefits from your superannuation fund.
What insurance issues do I need to consider?
Many people have not paused to consider the “fine print” in their income protection, total and permanent disablement and other insurance policies. These documents are often written in legalese which most people do not understand. That’s why you need a lawyer to break down the document into plain English so that you know whether the policy is appropriate for your needs – why pay the insurance premiums for nothing!
What do I need to consider in connection with gifts and loans?
Many parents of adult children quickly discover that while the children have left the nest, they quickly return. When it comes to making a Will there are a number of issues that need to be addressed in connection with gifts and loans. Was the money a loan or a gift? If it was a loan, what were the terms of the loan? Has the debt been paid in part or full? How can the loan be treated under the Will? In many cases family members do not adequately document the nature of their transaction. Where there is later disagreement, just like any other litigation between people in disagreement, the matter has to go to the courts to be resolved. It is important to address these issues wherever possible before advancing money to another party to ensure that all legal issues have been properly explored.
What are blended families?
The term “blended families” describes families where the parents have children from different relationships. Blended families create specific challenges because of competing interests which all need to be taken into account in developing an appropriate estate plan. In some cases the couples of a later second marriage with no children of this union would like to benefit the children from their first marriage. In other cases the couples of the later marriage have children of their union and want to ensure that these younger children are protected. There are many scenarios and each situation is different – you need a tailored solution. There are a range of estate planning strategies that can be considered including but not limited to:
- life insurance to increase the gift to certain family members;
- joint tenancies, trusts and binding death nominations;
- contract to make mutual wills;
- testamentary trusts with shared control.
What are registered relationships?
The Relationships Register Act 2016 (SA) makes it possible for a couple (whether opposite sex or same sex, and irrespective of their sex or gender identity) to register their relationship with the office of Births, Deaths and Marriages in South Australia. While people may choose not to register, their relationship will be recognised for some purposes such as applying for legal aid, social security payments and benefits, taxation, child support and other issues. For other purposes the relationship must have existed for a period of one, two or three years to be recognised and a declaration of the relationship may be necessary which will involve an application to a court. The cost and delay involved in obtaining a declaration can be avoided by registering the relationship. It is important to note that the commencement of a registered relationship under the Relationships Register Act 2016 (SA) automatically revokes a will unless the will was made in contemplation of the registered relationship and this was stated in the will.