FAQs - Answers to your Questions
What is a Will?
Your Will is your instruction book that tells who you want to give your belongings to and what each person should receive. The terms of the will should accommodate life changes such as the buying and selling of real estate, changes in personal belongings, and the best way to protect your assets from family provision claims.
What can I gift in my Will?
In your Will, you can gift anything that you own when you die. This means anything in your legal name, such as property, cars, jewelry, shares, and money. BUT, you can’t gift any possessions that you sell or give away before you die. You also can’t gift anything that you own as a joint tenant with someone else, as this automatically goes to any surviving joint tenants.
What is Joint Tenants?
Mostly, you come across the term “joint tenants” when buying a house, apartment, or land with another person, or when opening a bank account.
Joint tenants means that, upon the death of one tenant, the entire asset belongs to the surviving tenant or tenants.
The trap here is that the asset, or what you thought was your share of the asset, can’t be gifted in a Will because when you die, you don’t own it anymore.
What is a Power of Attorney?
Your Attorney is the person you appoint to make decisions on legal and financial matters when you can’t do this yourself. You appoint your Attorney by a signed Power of Attorney appointment document, which also specifies the actions and decisions your Attorney can take, such as running your business but not selling your house.
As with all Estate Planning documents, if not drafted with care and noting your wishes, it can be problematic.
What is an Estate Plan
An Estate Plan is the mechanism that turns your wishes into legal documents. These documents should include a simple will or a will with testamentary trusts, an enduring power of attorney, appointment of enduring guardianship, a binding superannuation death benefit nomination, clear instructions for executors, and all the right tools for estate administration. The purpose of the Estate Planning documents is to appoint the people you need to carry out your wishes and give them the tools to do so.
What does an Enduring Guardian do?
An Enduring Guardianship is the person you nominate in a properly drafted document who makes decisions about your medical treatment, living arrangements, lifestyle decisions, and the care you receive if you can’t make these decisions for yourself. You can use this document to express your wishes regarding future health care, limit the powers of your appointed Guardian, and provide specific health care directives.
However, drafted incorrectly, this document can be problematic. It is better to seek proper legal advice for appointing an Enduring Guardian.
What are your Legal Obligations when drafting a Will?
Each state and territory in Australia has a Family Provisions Law. In NSW, certain persons can expect to benefit from your Will. These persons are called eligible beneficiaries and include your spouse, de facto partner, children, dependants, persons with whom you live in a close personal relationship, and former spouses. An eligible beneficiary left out of a Will or insufficiently benefited from a Will can claim against the Estate. Win or lose, these claims can drain the estate of substantial funds.
Your Estate Plan should consider all eligible beneficiaries.