Common Misconceptions about Estate Planning

An estate plan involves more than signing a will and leaving it in a safe place. An effective estate plan requires consideration of several matters, and ongoing review to ensure it reflects your testamentary wishes and covers unexpected events.

Common misconceptions of estate planning

In this article, we look at some misconceptions about wills and estate planning, and dispel some common myths. The information is general only, and you should obtain professional advice specific to your circumstances before you undertake any course of action.

I have a will – isn’t that an ‘estate plan’?

A will is a great start to planning your estate, however a will alone does not appoint a trusted person to look after your financial affairs when you are away, or if you are incapacitated. Likewise, a will cannot appoint a guardian to make health and lifestyle choices on your behalf if you are incapacitated.

Tip: Various legal documents form part of your overall estate plan. Think about what you would do if the unforeseen happened, and you could no longer manage your affairs. Talk to your lawyer about the benefits of appointing an attorney or guardian to make decisions for you if you are incapacitated.

Only the rich need an estate plan, don’t they?

This is certainly not the case. No matter what your financial status, an estate plan enables you to appoint a trusted person to administer your assets when you die, ensure your hard-earned property is left to beneficiaries chosen by you and not others, maximise the gifts and benefits you leave to your loved ones through appropriate taxation planning, and prepare for unexpected crisis (illness and incapacity) by appointing somebody you trust to deal with your affairs when you cannot.

Tip: Think about your current assets and the assets you aim to accumulate in the future – they soon add up. Think about who you would like to benefit from your estate and how you can maximise the value of your assets for your beneficiaries.

I can leave joint property to whomever I wish, can’t I?

The right of survivorship applies to jointly held assets. The right of survivorship means that, upon the death of an owner of a jointly held asset, that asset automatically goes to the surviving owner/s, regardless of what the will says.

Jointly held assets such as real estate often comprise the bulk of the estate’s value. For spouses and de facto partners, this may be ideal as many would simply wish the surviving partner to benefit. However, joint ownership may not be appropriate in some circumstances, such as for property held with certain other family members, non-family members or other entities, or property that remains jointly held after divorce or separation.

Tip: Review your assets (real estate, bank accounts, investments) and check how they are held. Your lawyer can assist in this process and if necessary, sever joint tenancies so that your share of property can be separately held and left to whomever you wish.

Is superannuation automatically dealt with in my will?

Many people assume their superannuation will be divided up in accordance with the wishes in their will, but that is not necessarily the case.

Superannuation death benefits, comprising a member’s superannuation account balance and any life insurance payments held for their benefit in their superannuation fund, can only be paid:

  • directly to a ‘dependant’ (defined by legislation), as determined by the fund trustee; or
  • in accordance with a valid Binding Death Benefit Nomination (BDBN).

Your BDBN can require that your superannuation death benefits be paid to your legal personal representative, so that it must be distributed in accordance with your will.

Tip: Review your superannuation nominations to determine whether you have in place a valid and current BDBN. Talk to your lawyer about the formalities required to execute a BDBN and strategies to minimise adverse tax implications on the payment of your death benefits to your intended beneficiaries.

If I die without a will my assets go to the Government?

If you die without a will (known as dying “intestate”) your assets are distributed according to pre-determined formulae set by legislation in each state and territory. The rules attempt to reflect society’s ‘expectations’ as to who should benefit from a person’s estate. They provide a specific order of distribution to the deceased person’s next of kin. In rare cases, typically where there is no will and no next of kin can be identified, the assets may be claimed by the State government under a process called escheat (pronounced es-cheet).

The problem with these statutory rules is that they do not necessarily consider the wishes of a deceased person nor his or her unique circumstances.

Tip: Don’t rely on a statutory formula to determine those entitled to benefit from your estate. A will is essential to allow you to nominate your executor and chosen beneficiaries.

Do I need to update my estate plan when I have a child or more children, move house, or acquire new assets?

You should always review your will when your personal and financial circumstances change significantly. Your will may already provide for children (or future children) and you may not need to update it for every change, but it is good practice to review it when you experience major changes in your life.

You should also be careful about naming specific assets in your will, for example details of a particular vintage car that you may own. A gift in your will of a specific asset which is sold during your lifetime may fail, and cause an unintentionally unequal distribution amongst beneficiaries.

Wills are generally drafted to provide flexibility with respect to the nature and value of assets held, and to provide for future generations (including unborn children) and substitute executors and beneficiaries.

Tip: Setting a reminder to review your will each year, for example, when your annual tax return is prepared, makes good sense. In many cases, no changes will be needed but it is good practice to make a habit of a regular review. If you separate, divorce, or your financial or personal circumstances change significantly, contact your lawyer immediately to see how these changes impact your existing will and, where necessary, prepare a new will.

Conclusion

Effective estate planning takes time and careful consideration. If you or someone you know wants more information or needs help or advice, please contact us.

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