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NOMINAL ASSETS - DO YOU STILL NEED A WILL?
Tue, 14 Oct 2014
If you are an existing client of our firm, you would have recently received an important letter in the mail regarding Estate Planning and Wealth Protection. This letter highlighted the importance of obtaining legal advice tailored to your specific circumstances to ensure that your loved ones are protected and your wishes are adhered to after you pass.
Many people believe that they only need a will if they have significant assets, however this is incorrect.
A will is a legal document which can allow you to organise many other aspects of your estate after you pass, and is not solely used just to nominate who will receive your assets and belongings after you die.
These options include, but are not limited to, the following:
- nominating the person who will be responsible for managing your estate (your Executor);
- allowing your executor to arrange your funeral and to make decisions about organ donation and/or medical research in accordance with your instructions;
- avoiding needless taxes when your estate is being administered and allowing your executor to have the authority to cancel unnecessary services for example, electricity;
- appointing a guardian for your children until they are at an age where they can look after themselves;
- appointing a trustee for any funds or assets left to minor children (or other beneficiaries) who may not be able to control these themselves;
- dealing with sometimes complex issues relating to blended families, former spouses/de facto partners and children from earlier relationships;
- providing for someone who normally wouldn’t be automatically entitled to your estate;
- excluding a beneficiary who might otherwise receive part of your estate (conditions apply);
- to leave assets or funds to a charity.
Another misconception is that a will is straightforward, that minimal consideration is required and that there are no negative side effects if it is done incorrectly. This is also incorrect.
It is important to be aware that a poorly drafted Will can cause significant financial strain on your beneficiaries/family members, can be the subject of costly legal disputes, and can result in the loss of taxation benefits.
At a minimum, the following matters should be considered upon preparing a Will:
- Incorporation of provisions to protect the estate assets and beneficiary facing an unforeseen family law dispute or creditors?
- Recording adjustments passing outside the scope of the will to avoid unfair or uneven distribution?
- Is the Will sufficiently drafted to protect against any challenge via the Family Provision legislation?
- Does the Will grant the Executor the flexibility of establishing a Superannuation Proceeds Trust to ensure the most tax effective distribution?
- Does the Will give directions about where to pay any death benefits, superannuation or life insurance proceeds (known or unknown) payable to the Estate rather than directly through a binding nomination?
If you need to have a will prepared, or if you have queries about your existing will, the Wills & Estates team at Affinity Lawyers is here to help. Simply contact our Gold Coast office on 07 5563 8970 to arrange an initial consultation, which is free of charge, with one of our experienced, professional lawyers.« Back to Articles
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