Consumer & Competition Law Lawyers Sydney
DECEASED ESTATE PLANNING

When we talk about estate planning what we really mean is working with you to enable you to arrive at decisions about what you would like to happen to your assets should you no longer have capacity to handle your own affairs and also in the event of your death.

While many people are unlikely to nominate estate planning as being on their “favourite things to do” list, it really is a task that should be on all our “must do” lists.

Estate Planning is More Than Simply Drawing Up a Will

The preparation of a carefully thought out and well drafted Will is a central part of estate planning and part of the service our experience lawyers are able to offer our clients.

Estate planning is much more than simply writing down a list of your assets and who they will go to after your death. Prior to preparing a Will we recommend that our clients consider some or all of the following questions depending on their personal circumstances:

  • Who would you like to manage your affairs and make decisions about your care in the event that you no longer have capacity to make important and everyday decisions?
  • Who would you like your belongings (often referred to as ‘assets’) to go to after you die;
  • Do you have young children? Consider who would be a suitable guardian to appoint if you were to die before the children were old enough to look after themselves? Do you need a separate trustee from any guardian to manage any assets left to the children until they become adults?
  • Do you have children from a previous relationship? If you do consider what provisions will be made for those children. Consider also provisions to be made for a de facto or same sex partner.
  • Are there any individuals you may wish to exclude as beneficiaries? Consider whether excluding someone may lead to a dispute over the estate.
  • You may have clear wishes for your funeral. Although you obviously cannot be certain they will be followed after your death there is a much better chance things will be done how you want if you leave clear guidance on this issue.
  • You may wish to make your position on organ donation clear.

Choosing an Executor for Your Estate is a Central Part of Estate Planning.

An Executor’s responsibilities range from arranging your funeral through to collecting any debts owed to you in your lifetime, claiming under any available insurance policies, protecting your assets until distribution, obtaining probate and ensuring that assets are distributed according to the wishes outlined in your will.

If the will is disputed then the Executor will be the person responsible for dealing with any dispute including giving instructions to legal representatives in the event of litigation being commenced.

Important matters to consider when choosing an Executor include:

  • Who you would like to appoint to manage your estate?
  • If you have someone in mind consider whether they are willing to accept this role?
  • Is the person you are thinking of suitable for the role and will they have the time needed to carry out the duties involved?
  • Is the person you are thinking of likely to outlive you?
  • Consider appointing a second alternate Executor as a backup in case your first choice is unable to act in the role. Alternatively, consider whether having joint Executors (two people) to fulfil the role may be a more suitable option.
  • Will the person have the confidence and experience needed to do deal with your assets in the way you would like? This question is especially important if you foreshadow a potential dispute over your estate. The Executor needs to be able to act impartially.
  • If you do not know anyone suitable consider whether you appoint someone like your solicitor or a trustee company to act in the role.

Proactively planning for how you would like your assets to be distributed after your death can save many hours of heartache for friends and family.

Estate planning can also aid in ensuring that the assets you have spent a lifetime accumulating are not eaten up by costly legal battles after your death which arise simply because no direction has been left as to how you wish your estate to be divided.

We have experienced lawyers on our team who specialise in this important area of law. Please contact us to discuss how we can best assist you in planning for the future.

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