Often we are asked questions about protecting assets and ensuring that proceeds of an estate go to the right family members. Whilst we can give general guidelines for what to do, it is best that you seek the guidance of a lawyer well versed in family law and estate planning.
But what sort of needs does a regular person have for a lawyer? Below I have asked a few questions of some knowledgeable professionals. They are across the estate planning field and are more than happy to assist you with your needs in this area.
On to the questions…
EM: Estate planning and law in general seems to be a complex area that clients aren’t always so sure about. I guess a good starting space is how lawyers can help our clients and vice versa?
OL: Lawyers can help clients to prepare new or updated Wills, Powers of Attorney and Advance Care Directives, along with providing estate planning advice.
KD: We can also help at the ends of relationships when it’s important to review estate plans or following changes in estate structures such as creations of companies or trusts.
SP: Agreed, lawyers are able to provide services relating to Wills & Codicils, family trusts, testamentary trusts, Powers of Attorney, Advance Care Directives, estate & succession planning including for family businesses and succession planning for farms. By working in collaboration with financial advisers, we can assess our client’s overall financial resources and advise of the best structure for them.
KD: Financial advisers are particularly useful to clients at crucial life events such as creation of estate plans or ends of relationships. Working together with financial planners to create an estate plan is a fantastic way of making sure estates are distributed in the way in which they are intended.
EM: I do think having a team of professionals around us is a great way to ensure that all bases are covered, so to speak. At the bare minimum, having a Will once you achieve 18 years of age seems appropriate. Other important document needs arise as a client’s circumstances change. Why are these matters important to clients, even those without substantial assets?
SP: There are many factors which must be considered when estate planning. Succession plans for businesses, trusts to protect dependants and tax advantages, to mention just a few examples. We are trained to consider the ‘big picture’ and to advise our clients on matters they may never have turned their minds to.
OL: It’s important to have a binding and up-to-date Will in place to ensure that your wishes are followed and your assets are correctly distributed after your death. Wills provide instructions as to how your assets will be distributed, who will take care of administering your estate and will even direct who you wish to be the guardians of your minor children should you pass away.
KD: Making sure that you have these documents is the first step in being organised for your future but keeping them up to date is equally as important. You need to have capacity to prepare these documents as failing that, they will not be able to be created or amended, this can cause large costs for you and your estate.
EM: Can’t clients just use a DIY Will kit? Do they really need a lawyer to prepare the documents? Have you got an example of when these documents weren’t executed properly?
OL: A situation I dealt with involved a do-it-yourself Will kit where the two witnesses and the deceased had signed in different coloured pens. Pursuant to the Wills Act 1936 (SA), two independent adult witnesses must sign the original Will together with the Will maker at the same time in the presence of the Will maker and of each other. The Probate Registry did not accept the Will with signatures in different pens as this raised doubt around whether all three individuals signed the Will at the same time and in each other’s presence. In order to satisfy that this requirement was met I had to locate one of the witnesses to obtain a sworn affidavit.
SP: Indeed, the execution of a Will is almost as important as what goes into a Will. If done incorrectly, it could cost your estate thousands of dollars to rectify.
KD: Exactly! Not only can estate litigation matters be costly but they can be lengthy, leaving your loved ones without finality of your financial circumstances sometimes for years.
EM: Interestingly, you all highlighted the same issue of incorrectly signed documentation. It seems it may be best to leave law to the law professionals to ensure important matters like estate planning are handled correctly and with minimal fuss. When should people consider utilizing your services?
KD: At any time in their life. Should they have no estate planning documents, consider preparing them ASAP. Those who have estate planning documents should consider reviewing them at least every 3 – 5 years to make sure they continue to reflect their wishes.
OL: Especially when life changes occur. This could include whether you have had children, recently married or separated from a partner, when you dispose of significant assets or when you wish to reconsider your beneficiaries.
SP: Regardless of whether you are simply husband and wife, whom own their home, have a couple of cars and some cash in the bank, or, you are have complex trust structures and own businesses, estate planning is an important part of life. Wills are complex documents and if incorrectly prepared, can cost your loved ones, not only in monetary terms, but also emotional stress and time to fix matters.
KD: A well known example of where documents should have been updated but weren’t, was when Heath Ledger failed to amend his Will following the birth of his daughter therefore leaving his estate to his parents.
EM: I think we would all have a situation that comes to mind if we think about estate planning failures. I imagine tragedies bring to light the need for estate planning and proper designation of assets at demise. Have you seen an increase or decrease in the amount of clients in the estate planning sector due to COVID? Why?
OL: There has been an increase in the number of clients requiring estate planning services during the COVID-19 period. Many clients have explained that the uncertainty during this time has made them want to ensure that their loved ones are looked after and their wishes adhered to in the event of their death.
SP: We think with ‘lockdown’ situations and people having more time on their hands to contemplate their health and futures, people have turned their minds to estate planning. Also, people may have had a little extra cash, as they haven’t been spending their disposable income as much.
KD: Yes, we’ve also seen an increase to clients in the estate planning sector since the start of COVID. Estate planning really is about planning for an unknown in the future and I think COVID really highlighted that for many people.
EM: A pandemic really does give a different perspective to everyday life and we are reminded of our own mortality. So say we all agree that the estate planning documents are necessary, and getting them prepared by a lawyer is the preferred option to ensure validity, aren’t lawyers expensive? How much should a Will cost me to create with a professional?
KD: Simple Wills and Estate Planning documents can be affordable and whilst it’s better to have all of your documents prepared, starting off with a properly prepared Will is better than having no estate planning documents prepared at all. Its cheaper to have a Will and Estate Planning documents prepared then it is for family to make applications to the Court or Tribunal after you have lost capacity.
OL: Precisely! There is no price tag that you can put on a correctly drafted legally binding Will prepared by a Lawyer. It’s a good idea to ring a lawyer’s office to get a quote for your Will and other estate planning documents.
SP: We are always happy to give a quote over the phone upon receiving some general background information. Every matter is so different! However, we do find clients are always pleasantly surprised by the cost and how smooth and quick the process is attended to.
EM: I know many of our clients would have found this information useful and would be considering actioning their estate planning matters as soon as they can. What if they don’t know where to start, what conversations should they have with themselves and family in regards to estate planning?
OL: Estate planning can be a daunting process, however things you need to think of are:
1. Who you wish to be your executors;
2. Whether you wish to gift any particular asset;
3. Who you wish to be your beneficiaries; and
4. Who you wish to be the guardians of your minor children.
SP: These are absolutely a good start! We will then ask specific questions depending on the individual. It is important to have correct spellings and personal details ready for us. i.e. occupations, addresses and dates of birth.
KD: If you are not sure who might be best to act on your behalf or how you want to distribute your estate to then our suggestion would be to speak to your lawyer and talk it through with them. We see so many scenarios regularly, that we will be able to help find a solution that suits you. But, the best place to start is by having a general conversation with your closest family members.
EM: Thank you to all of you for your time in answering these pertinent questions. This information will be valuable to many of our clients and I think we can all agree that getting your estate planning documents prepared and keeping them updated (read: relevant) is of utmost importance.
Sriyani can be contacted via email on sriyanipartridge@humetaylor.com.au or phone 08 8223 3199
Olivia can be reached via email on olivia@cpclawyers.com.au or phone 08 7325 0219
Kaela can be contacted via kdore@rudalls.com.au or 08 8523 8415
Kaela, Sriyani and Olivia can be contacted at their respective offices listed above. Please don’t hesitate to reach out should you have any further enquiries regarding estate planning or any other legal matter you may have. As financial advisers, Wakefield Partners regularly work with estate planning lawyers. Having the background knowledge about why it is important assists us in giving our clients the personalized service that we pride ourselves on. Contact us to discuss your circumstances and to discover how best we can assist you.
