THINGS YOU SHOULD KNOW ABOUT PREPARING A WILL

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WHAT IS A 'STANDARD WILL'?

A 'Standard Will' is a will prepared in accordance with your instructions for an uncomplicated, straightforward estate and includes:

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1. Appointment of one or more individuals (including your current partner or spouse) as executor and appointment of a  'back up' executor in case the first appointed executor can't act or predeceases you;
    

2. Appointment of a guardian for any minor children you may have;
    

3. Specifying the type of funeral and burial you want; 
    

4. Straightforward gifts to one or two beneficiaries (if desired);
    

5. Giving the balance of your entire estate (after debts and gifts) to one individual (for example spouse or partner) and then to your children or grandchildren equally if that person has not survived you, or to another individual in substitution if no named beneficiaries have survived you; and
    

6. Stating age conditions for when minor beneficiaries may receive their inheritance (i.e. 18, 21 etc).

THE FOLLOWING CIRCUMSTANCES ARE

NOT CONSIDERED PART OF A 'STANDARD WILL'

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• Blended families - if you or your spouse or partner have children from previous relationships

• Life interest - if you wish to include provisions to allow someone to live in one of your properties for the remainder of their life (whilst gifting beneficial ownership of that property to someone else in your will such as a child)

• Testamentary trust - if you wish to include a testamentary trust in your will so that the beneficiaries receive their inheritance in a way that allows them to save tax on the income they earn on their inheritance, or to take advantage of other benefits and protections available under a testamentary trust

• Assets held in trusts, SMSFs, companies and partnerships - these assets can't be dealt with in your will and further advice will be required on how you can protect and control these assets

• Excluding a beneficiary - if you are leaving someone out of your will such as a child, spouse you are separated from (but not yet divorced) or other similar class of beneficiary further advice and special drafting in your will is required.
   

BEFORE PROVIDING YOUR INSTRUCTIONS

Before you provide us with instructions, please consider the following:

• If you have a previous will, please provide this to us. We will formally revoke the will.

• We will ask you to provide the full legal name, occupation, address and date of birth for executors and beneficiaries so please gather this information ahead of providing instructions to us.

• We will ask you to provide details of your current assets including jointly held assets, superannuation, life insurance policies, assets held in trust and information relating to any companies and businesses you own.

 YOUR EXECUTOR

Consider who you wish to appoint as your executor/s. Generally, spouses will appoint each other as first executor and an alternate to act if the first spouse doesn’t survive or is unable to act.

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An executor is the person or persons you appoint in your will to be responsible for ensuring your final wishes are carried out. The executor(s) are responsible for obtaining the death certificate, arranging for the funeral, finding the original will, applying for probate and advising family and friends. The executor also ensures all debts of the estate are paid, tax returns are lodged and distributes the estate to the beneficiaries in accordance with the will.

 

• The duties of an executor often require a lawyer to be appointed to prepare documents for probate and provide guidance in the administration of the estate, which cost is a liability to your estate. The person whom you chose should have some understanding of legal responsibilities and accounts and could be personally responsible for any mistakes they make in the administration of your estate. You should have a conversation with your proposed executor before appointing them to make sure they are comfortable with the appointment.

• If you wish to appoint two people to act as executor so that their decisions are jointly made, consider that this can be impractical in some circumstances, for example if the individuals reside in different states as they will also be required to both sign all documents requiring the executors’ signatures. However, appointing two executors acting jointly can be a safeguard against any improper conduct.

• If you have appointed one executor only, we recommend that you appoint an alternative executor as a 'back up' in the event the first person has predeceased you or is unable or unwilling to act for some reason.

 

BENEFICIARIES
 

Consider who you would like to receive the assets from your estate.
 

• It is common for spouses to leave their estate to each other and then their children in equal shares however you may have other wishes. For example, if you are in a blended family (with children from previous relationships), you may leave a portion of your estate to your spouse and another portion to your children from a separate relationship. We will provide you with further advice if this is the case for you.

 

• If you are excluding someone from your will who is, or may be considered to be dependent on you, it is important that you provide us with details on who you are excluding and the reasons why as we may need to include this information in your will and advise you further.

 

• Who do you want to receive a share left to somebody in the event that person predeceases you? Think about how you want that person’s share dealt with. For example, you may specify their share is to go to their children, or their share is instead to be distributed equally among the remaining beneficiaries who have survived you.

 

SUPERANNUATION, LIFE INSURANCE, TRUSTS & COMPANY ASSETS

 

Check who you have nominated as the beneficiary of your superannuation fund and any life insurance policies. Superannuation, trust income and assets held by companies and businesses do not form part of your estate (i.e. they cannot be dealt with in your will - you cannot leave these assets to beneficiaries via your will). For superannuation and life insurance it is important that you obtain details of the nomination arrangements and update this information with the binding nominations required. We will provide further information on trust and companies if applicable to you.

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GUARDIAN OF YOUR MINOR CHILDREN

 

Consider whether you wish to appoint a guardian of any minor children you have in the event both parents pass. In the event a dispute arises over guardianship the Family Court will take this appointment into account if there is disagreement about guardianship.

 

UPDATING YOUR WILL

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You should review and update your will if your circumstances change (for example marriage, divorce, birth or adoption of a child or death, and changes to your assets).

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THINGS YOU SHOULD KNOW ABOUT PREPARING

 A POWER OF ATTORNEY & APPOINTING

A MEDICAL TREATMENT DECISION MAKER

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WHAT IS A POWER OF ATTORNEY?

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A power of attorney is a document that legally appoints someone to act on your behalf to manage your affairs in certain circumstances.

Once the power commences (as specified on the document) the attorney can stand in your place and do anything you can legally do (for example deal with your financial affairs: withdraw money from your bank account, mortgage your property, sell your property; for personal affairs: choose where you live etc), subject to any limitations you specify in the power.

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You should have a conversation with your proposed attorney before appointing them to make sure they are comfortable with the appointment.

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• If you have a previous power of attorney, please provide this to us. We will formally revoke the power of attorney.

• We will ask you to provide the full legal name, occupation, address and date of birth for attorneys so please gather this information before providing us with your instructions.

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TYPES OF POWERS

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• The types of powers of attorney are:

  • Personal matters or financial matters

  • Both personal and financial matters

  • Medical – Appointment of a Medical Treatment Decision Maker

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WHO CAN BE YOUR ATTORNEY?

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• An eligible attorney is an individual who:

  • Is over 18 years of age

  • Is not bankrupt

  • Has not been convicted of fraud
    But must not be your care worker or health professional. It is very important to appoint somebody you trust as your attorney.

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CAN YOU APPOINT MORE THAN ONE ATTORNEY?

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• You can appoint more than one attorney - so that their decisions are jointly made. This can be impractical in some circumstances, for example if the individuals reside in different states as they will also be required to both sign all documents requiring their signatures. However, having two attorneys acting jointly can be a safeguard against any improper conduct. If you have appointed one attorney only, we recommend that you appoint an alternative attorney as a back up in the event the first person has predeceased you or is unable or unwilling to act for any reason. The attorney is not paid, unless they are a professional or if you specify as such in the document or if they seek a court order.

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• You should speak to your preferred attorney(s) prior to giving instructions, as they will need to give their consent to act soon after you sign the document by signing an acceptance statement.

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WHAT ARE THE ATTORNEY'S DUTIES?
 

• The attorney’s duties are:

  • To act honestly, diligently and in good faith

  • Exercise reasonable skill and care

  • Avoid conflict of interest

  • Not disclose confidential information gained as the attorney

  • Keep accurate records and accounts
     

CAN AN ATTORNEY'S POWERS BE RESTRICTED?
 

• For a personal and/or financial power of attorney, you can place restrictions on the appointment, for example:

  • For a certain period of time (for example during a period in which you will be overseas)

  • For a restricted purpose (for example to sign a Contract of Sale for a property)

  • Jurisdiction (for example in Victoria only)

  • In a particular circumstance:

    • for example only if two medical practitioners have signed a statutory declaration that in his or her opinion you are mentally incompetent and unable to make your own decisions

    • for example, you are incapacitated and unable to manage your personal and/or financial affairs

    • any other nominated occasion or event

  • Or a combination of the above

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CAN THE APPOINTMENT BE REVOKED?

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• The powers of attorney can be revoked at any time but while you have decision making capacity. In any case, you should review your power of attorney if your circumstances change (for example marriage, divorce, birth or adoption of a child or death).

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DOES THE ATTORNEY HAVE AUTHORITY TO ACT WHEN I DIE?

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• The power of attorney ends (unless you have previously revoked it – see previous point or by court order) when you die. Then the executor nominated in your will takes over your financial affairs.

 

APPOINTING A MEDICAL TREATMENT DECISION MAKER

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• Appointing someone as your Medical Treatment Decision Maker gives them the power to make medical decisions for you if you are unable to do so yourself.

• You can appoint more than one Medical Treatment Decision Maker.

• You can change your appointed Medical Treatment Decision Makers at any time whilst you are still legally competent.

• You should tell your Medical Treatment Decision Maker about your wishes with respect to medical treatments, what you think about life support, surgery, medication and anything else that is important to you with respect to your medical treatment.

• Make sure you have provided your doctor and healthcare providers with details of your appointed Medical Treatment Decision Maker.

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