23 August 2021 to 29 August 2021 is ‘Wills Week’ and a timely reminder to anyone who needs to update their estate plan.
1. What documents are included in my estate plan?
Your estate plan includes more than just your Will. It also includes:
- Enduring Power of Attorney – who is appointed to make decisions on your behalf in the event you become incapable to make those decisions;
- Advance Health Directive – who is appointed to make specific medical decision on your behalf;
- Death Benefit Nominations for your superannuation;
- Statement of Wishes;
- List of Specific Gifts;
- Digital Asset Register;
- Trust Deeds and Deeds of Variation;
- Business Succession documents.
2. When should I update my estate plan?
While we future-proof your estate plan as much as possible when drafting, circumstances change and it is important to review your estate plan every 3-5 years. Your estate plan should also be reviewed when specific events occur, including the following:
- If you have a significant change in your assets.
You may have left a specific gift (particularly real estate) of one asset to a beneficiary and you have since sold that asset. You may have new companies or family trusts and need to deal with the gifting of shares or control of the trusts in your Will.
- Significant change in your personal and family circumstances.
There may be new children or grandchildren that you want to include. You may need to update your enduring power of attorney so that your attorney can provide benefits for the needs of your new child.
A beneficiary may have passed away or no longer be part of the family through divorce. One beneficiary’s needs might have changed meaning they need a greater share of the estate.
- Change in your relationship, including marriage, divorce or separation.
It is important to note that divorce can render certain clauses invalid. Marriage can revoke part of a Will, unless your current husband/wife is your executor and beneficiary or unless your Will states that it was made in contemplation of your marriage. This can lead to parts of your Will being valid and other parts subject to the rules of intestacy.
Separation does not revoke your Will. Parties need to wait 12 months from separation before they can file for divorce. It is particularly important on separation to update your estate plan to ensure your former spouse does not remain your attorney, executor or beneficiary.
- Changes to your attorney or executor.
Acting as attorney or executor can be an onerous task. It may be that your attorney or executor is no longer suitable for or willing to undertake the role. Has your estate become more complex? Have the circumstances of your executor changed, such as health circumstances or a job with significant travel?
- Lapsing nominations
Superannuation is treated differently from the rest of your estate. You can specify how your death benefits are to be distributed on your death through ‘death benefit nominations’. Depending on your superannuation fund, some nominations lapse every three years. It is therefore essential to update your nominations regularly to ensure they remain in effect and do not expire.
3. Do I need to prepare a whole new Will?
Sometimes it may be necessary to complete a new Will which has the effect of revoking any previous Will you have made. If the change is only minor you can execute a Codicil, which is a separate document that either adds extra clauses or changes existing clauses in your current Will. It is important that you do not make any handwritten amendments to your Will which could invalidate the document.
A valid and up-to-date estate plan is an investment for your future. It ensures that your wishes can be carried into effect and that your proposed beneficiaries are able to receive the distributions you have provided for them. This also makes it easier for your attorneys and executors and can make the administration of your estate smooth and cost-effective.
We would be delighted to assist you updating your estate plan. Please email Lauren Nolan at firstname.lastname@example.org if you have any questions.