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Wills and Estate Planning

Wills and estate planning with Mildwaters Lawyers. Image: Happy Family by amslerPIX via Flickr

Planning for your family’s future after you’re gone is a really important legal task, which is why this page about wills and estate planning is such an important one.

There are many steps involved in estate planning which involves considering and organizing your financial and legal affairs so that when you are gone, your estate will be dealt with in accordance with your wishes.

Step 1 – Wills and estate planning begins with having a legally binding Will

If you take the time now to make a legally binding Will, you can save your family time and money when you are gone. Mildwaters Lawyers can help by preparing your Will based on your instructions and by making sure that your Will meets all the requirements of the law.

As part of this process we can advise you about any special aspects of your Will that require attention including:

  • if you have a blended family, how to provide your spouse with financial security using joint ownership and other means
  • how you can preserve farming assets for a child that may become a farmer in future while still providing for your children that don’t become farmers – and how you can do this even when your children are still very young
  • if you can leave out potential claimants and ways to avoid a claim against your estate
  • providing for a child who is in financial difficulty and facing impending bankruptcy
  • providing for a child who has a shaky relationship
  • providing for a child who has a drug, alcohol or gambling problem
  • providing for a child that suffers a disability
  • your superannuation and how it fits in with your Will
  • how assets held in companies, trusts and partnerships can be dealt with
  • the options for dealing with any tax issues that may arise in the course of the administration of your estate
  • what powers the executors should be given to administer your estate.

We have extensive experience in the preparation of all types of Wills, both simple and complex, standard and testamentary trust Wills.  Whatever circumstances you find yourself in, there is a Will to suit you.

Step 2 – Have a Power of Attorney and Advance Care Directive in place

At the same time as considering your Will, we strongly recommend that you also put in place plans for any future incapacity by having us prepare a Power of Attorney and Advance Care Directive. These documents will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.

Step 3 – Consider whether you have made proper financial provision for your family

Have you thought about how your family would cope financially if you were gone tomorrow? This is the crux of wills and estate planning.

To help you consider whether you have made proper financial provision for your family, answering the following questions will help.

  1. If you died tomorrow, would your family have immediate access to sufficient funds to provide for their immediate living expenses until your estate could be sorted out?
  2. Do you have debts such as a mortgage that would be paid out by insurance cover if you died tomorrow so that your family wouldn’t have to worry about being responsible for them?
  3. Would your family have financial security due to owning a home to live in or would they be able to buy themselves a home with a life insurance payout after your death?
  4. Would your family have enough money to live on from your savings or from the proceeds of a life insurance policy if you died tomorrow?

If you answered no to any of these questions, then it is important that you prioritize your estate planning.  We can help you to make sure that your family would be taken care of if you were no longer here to do it yourself.

Step 4 – If you own a business, consider what would happen to it if you died

If you run a business, have you thought about what would happen to it if you died?  Have you thought about what would happen to all your employees? Have you thought about whether your family could sell it and whether or not it is in “ready to sell” form.

It is important to make a plan to ensure that your family is not left with a business that they don’t know how to run or which they cannot sell.

We can discuss the options with you and to help you make a succession plan so that if your family is forced to deal with losing you, they won’t have to worry about dealing with your business as you will have everything organised.

Step 5 – If you own a farm, consider how to preserve it while still making financial provision for everyone

If you own the family farm, then the issues that you have to consider with wills and estate planning are vast.

Our firm Principal, Kylie Mildwaters, was raised on a farm and has farming heritage on both sides of her family, so she has a special understanding of the issues that face farmers when considering their estate planning.

Her own parents and grandparents have been through the same estate planning process and her brother now works the family farm in the Copper Coast region.

The most common questions that we are asked by farmers when helping them with their estate planning are:-

  • how can I protect the farm from a divorce?
  • how can I protect the farm from a claim against my estate?
  • when should I hand the farm over to my son or my daughter and how do I do that?
  • how can I protect myself financially when I hand over the farm to my son or my daughter?
  • how do I provide for my children that aren’t farmers?
  • what are family trusts and are they relevant to me?
  • what entity should I use to trade?

We can answer all of these questions and more and help you make a plan for the future success of the farm and for the benefit of you and the future generations of your family.

Step 6 – Consider tax

An important part of estate planning is considering the use of the exemptions, deductions and other estate planning opportunities to minimize tax.  Depending on your circumstances, you may wish to consider the following:

  • there are many assets that can be transferred to beneficiaries of a Will which are usually tax exempt including cash and motor vehicles
  • if the principal place of residence of the deceased is sold within 2 years of the date of death of the deceased, the sale will be capital gains tax exempt
  • if an asset falls into an estate that was acquired by the deceased prior to the 20th of September 1985, then the sale of that asset will be capital gains tax exempt
  • if one of your beneficiaries is left a capital gains tax exempt asset in your Will, they will be deemed to have acquired that asset at the market value of the asset at the date of your death – and if they later sell that asset, they will only have to pay capital gains tax on any increase in value from the market value at the date of your death
  • it may be beneficial to transfer an asset into a trust if you believe that the intended beneficiary of the asset will retain the asset for the long term – as it will avoid capital gains tax and offer flexibility in terms of income distribution to help keep tax as low as possible.

Step 7 – Get your paperwork organised

If you passed away tomorrow, would your family or your executors know where to find all your relevant paperwork including your Will, insurance documents, trust, company or partnership documents, statements relating to your superannuation interests and any shares that you might own?

If we are helping you with your estate planning, you are welcome to provide us with any original documents that you would like us to store in our safe custody facility as we offer this service to all our clients who wish to use it.

You can also provide us with a list of all your professional contacts such as your Accountant, Financial Adviser, your Banker and any other professional service provider that you use.  We can store this information in our electronic file ready to access if needed.  It would also be prudent to keep another copy of this information and advise at least one of your family members where they can find it if required.

It would also be extremely helpful if you provided us with a current list of your assets at the time that we prepared your Will and if you kept a copy of that list at home and let one of your family members know where it could be found if you passed away.

Being this organised makes it so much easier for your family and for your executors if something were to happen to you.  It also makes it quicker and easier to administer your estate which helps keep legal costs down and to transfer the financial benefits of your estate to the intended beneficiaries as soon as possible.

Contact us to find out more about how we can help you with your estate planning or your Will or both.

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