What is an Estate
The term estate refers to all property, interests and assets owned or controlled by a person. It includes things such as interests in land (eg houses, leases and licences), personal property and chattels, investments, shares, stocks, bonds, business interests, insurances, debts and trusteeships. It may or may not include superannuation death benefits and other interests under a trust.
What is a Will?
A Will is a legal document that sets out how a person’s estate is to be dealt with after death. The importance of making a Will cannot be overstated even in small estates. Having a valid Will enables you to:
- Nominate executors who will distribute your assets in accordance with your wishes.
- Nominate testamentary guardians for your minor children.
- Identify those individuals whom you wish to benefit from your estate.
What happens if I die without a Will?
If you die without a Will, known as dying intestate, your assets are distributed according to a legal formula that is unlikely to reflect your wishes. Additionally, your estate may be put to considerable expense and delay because it will be necessary to apply to the court for an order to administer the estate.
What is Estate Planning and how does it differ from making a Will?
Estate Planning is the process of anticipating and arranging your affairs so as to ensure your specific intentions regarding your estate (all property you own or over which you control) are carried out, if something was to happen to you either through death or incapacity. While creating a Will is integral to estate planning, good estate planning is much more than that. Good estate planning coordinates what would happen to your home, your investments, your business, trust entities controlled by you, your life insurance, your superannuation interests and other property if you become incapacitated or die. The planning should reflect your individual circumstances and preferences. Estate planning typically considers taxation and fee minimisation and is responsive to a range of contingencies.
What is an Enduring Power of Attorney?
Power of Attorney is the legal power given to someone else to make decisions on your behalf. Enduring simply means that the power continues if you suddenly lose capacity to make decisions. In Queensland you can appoint one or more persons to act as your attorney to make decisions about managing your finances and/or personal and health matters. Typically an Enduring Power of Attorney operates whilst you are alive and in circumstances where you might not be able manage your financial affairs or make your own personal and health decisions. Like a Will, an Enduring Power of Attorney is an integral part of the Estate planning process as it allows you to stipulate who would manage your affairs and how you would like that person to carry out your wishes.
What if I don’t appoint an attorney?
If you suddenly become incapable of managing you affairs and have not appointed an attorney, any of your closest relatives can apply to the Queensland Civil and Administrative Tribunal (QCAT) to become your Administrator (to manage your finances) and Guardian (to make personal and health decisions for you). Ordinarily QCAT invites your other close relatives, the Public Trustee and Adult Guardian into these proceedings. Ultimately, QCAT will make the decision about who should be appointed. The result may be that the appointed person is not the person that you would have appointed had you done so in advance.
Why choose Harrisonslaw?
At Harrisonslaw we have many years of experience in this area to enable us to provide you with expert advice regarding your estate planning needs. We can draft documents reflecting your wishes to ensure that:
- The right people administer your estate if you become incapacitated or die.
- The right people receive your assets.
- Tax effective strategies are implemented.
- Your assets are protected.
- Your Will and Enduring Power of Attorney are consistent with your Trust Documents, Self Managed Superannuation Funds, Business Succession planning, Superannuation Death Benefits/Pensions/Reversionary interests.