Last updated: July 2020
3. Prepare Legal Documents
Did you know that nearly half of Australians who pass away don’t have a Will, let alone have any other formalised wishes in place?
Most people understand the importance of putting in place a Last Will & Testament, yet so many of us put it off. Others who already have a Will may think that is all they need to manage their estate, formalise their wishes and protect their families.
Watch our Video to learn about:
- Common myths
- Types of Legal Documents
- Considerations for your Will
Read more about:
3.1. Last Will and Testament
This document outlines all the critical information about you, your family and how your estate is to be distributed after you pass away. You also nominate one or more Executors who will take care of everything and make sure your estate will be managed, administered and distributed according to your wishes.
It is important to know that you don’t necessarily need a Will but that you have much greater control over how you would like your estate to be divided. Where no Will is in place the estate will be administered as set out in the relevant State/Territory legislation rather than as you would prefer.
Some benefits of a Will are:
- nominate an Executor who knows you and who you trust to administer your estate according to your wishes;
- nominate beneficiaries and how much inheritance each will receive;
- nominate specific gifts and who should receive those (gifts can have a financial or sentimental value);
- allows your Executor to apply for Grant of Probate with the Supreme Court through a fairly standardised and cost-effective process rather than Letters of Administration;
- can reduce family disputes as your wishes will likely be more willingly adhered to compared to what the legislation requires; and
- allows your estate to be distributed more effectively overall.
Some elements of a Will are:
- your details and marital status
- your spouse’s, partner’s or de facto partner’s details
- your children’s details
- any specific gifts you would like to make and to who
- how the residual estate will be divided, distributed and to who
- who should be the Executor of your Will (and how many)
- who should be the back-up Executor of your Will (should the nominated be unable or unwilling)
It may seem like a daunting process at first. However, simplyEstate has developed a Last Will & Testament instruction tool that guides you through the process in your own time. The information and decisions you make are output so your lawyer can then draft a Will more easily, saving everyone time and money.
Note: In most cases marriage and divorce annul a Will unless special terms are put in place, and a new Will must be drafted and executed. From our experience, many people will have more than one Will in place in their lifetime to account for changing circumstances.
3.2. Enduring Power of Attorney
There are various types of Power of Attorney and the powers you can delegate will depend on your state or territory. We will provide an overview only for Enduring Power of Attorney. This document provides one or more nominated person(s) the power to make financial, and in some States and Territories, legal decisions, on your behalf should you become unable to make these yourself.
Some benefits of an Enduring Power of Attorney are:
- choose and nominate a trusted person to act in your best interest;
- know that your financial matters are taken care of when you no longer can; and
- add conditions to limit powers where needed.
Situations when an Enduring Power of Attorney comes into effect include:
- accident;
- serious illness;
- mental incapacitation; and
- temporary unconsciousness.
Decisions that may be made by an attorney include:
- payment of bills;
- managing of bank accounts; and
- sale or purchase or property.
Note: The powers delegated by an Enduring Power of Attorney end on the date of death of the principal, the person who put in place the Enduring Power of Attorney. The person nominated as attorney is not automatically the Executor or Administrator who administers the principal’s estate.
A Power of Attorney does not provide the right to make medical, treatment, personal or lifestyle decisions on the principal’s behalf in some States/Territories. You should discuss this with a legal professional.
3.3. Enduring Power of Guardianship
This document provides one or more nominated person(s) the power to make health related, medical treatment, personal or lifestyle decisions on your behalf should you become unable to make these yourself.
Some benefits of an Enduring Power of Guardianship are:
- choose and nominate a trusted person to act in your best interest in relation to health related, medical treatment, personal or lifestyle decisions;
- know that any health related, medical treatment, personal or lifestyle decisions are made for you when you no longer can; and
- add conditions to limit powers where needed.
Situations when an Enduring Power of Guardianship comes into effect include:
- accident;
- serious illness;
- mental incapacitation; and
- temporary unconsciousness.
Decisions that may be made by a guardian include:
- location of residence;
- support services received;
- aged care; and
- medical treatments.
Note: The powers delegated by an Enduring Power of Guardianship end on the date of death of the principal, the person who put in place the Enduring Power of Guardianship. The person nominated as guardian is not automatically the Executor or Administrator who administers the principal’s estate.
An Enduring Power of Guardianship does not provide the right to make financial or legal decisions about financial and property matters on the principal’s behalf. You should discuss this with a legal professional.
