Estate Planning Lawyers NSW

Inheritance Planning

The way in which you divide your Estate and manage your inheritance is very important if you want to secure your family’s financial future. Inheritance Planning is more than just having a valid Will in place, it’s a tailored plan that takes into consideration your assets, financial standing and personal risks. It’s a plan that ensures your assets are structured effectively so that they can be passed on to your chosen beneficiaries, while at the same time eliminating some of the ‘red tape’ and minimising the tax payable to your Estate.

The following article outlines 10 things you need to consider when it comes to Inheritance Planning:

1. Is your Will up-to-date, and does it reflect your wishes?

Major events in your life (marriage, divorce, kids, etc) may render some or all of your Will invalid. When these events occur it’s vital you contact your solicitor to update your Will to ensure it reflects your ‘current’ wishes. Even if there hasn’t been a major event in your life, it’s still recommended that you update your Will every 5 to 10 years.

2. Who will be the Legal Guardian for your dependent children?

If you have dependent children it is vital you appoint a Legal Guardian to look after them if you and your partner die. While considering finances for your child’s future is important, it’s even more critical to ensure they are protected by appointing a Legal Guardian.

3. Have you made special provision for any or all of your beneficiaries?

You are free to nominate any person/s you want to be your beneficiary. This means they will receive part or all of your Estate, as determined by the level of provision set in your Will. Unless you want all your beneficiaries to receive an equal share, you will need to make special provision for one or more of them in your Will.

4. Have you considered a Testamentary Trust?

A Testamentary Trust is a Trust that is established under a Will that acts as a set of directions that have been determined by you (the Testator). It involves the appointment of a Trustee who will then follow these directions and manage all of the financial resources on behalf of either the appointed beneficiary, or all of them. Every Testamentary Trust is different and requires a number of considerations that are best discussed with your solicitor. If you would like to discuss the benefits of having a Testamentary Trust, call us on 1800 994 279.

5. What about the assets not distributed through your Will?

When it comes to Inheritance Planning most people do not know that their Will does not cover all of their assets. For example, funds that are held in a superannuation fund, separate trust, jointly with another person or company may not be covered in your Will. These assets need to be dealt with separately and care should be taken to ensure this is done in a tax-effective manner.

6. Have you considered a Superannuation Binding Nomination?

Most superannuation funds will allow you to set a binding nomination. This is different from nominating beneficiaries, and very few superannuation funds will actually explain this to members. Even if you have nominated beneficiaries to receive a benefit from your superannuation fund, it’s the Trustee of the super fund who ultimately decides who receives a benefit from the fund. As a result, this process is left up to the Trustee and it can become a very time-consuming and sometimes costly process because they must first identify who the beneficiaries are and then notify them accordingly.

The beneficiaries can then appeal the Trustee’s decision and make a claim, which extends the process even further. A Superannuation Binding Nomination will ensure this situation does not arise and instead binds the Trustee to distribute your benefits to those you have specifically nominated. Finally, to ensure the nominations hold you will need to update your nominations every three years (which is also a good time to update your Will).

7. Do you have an Enduring Guardian and an Enduring Power of Attorney?

  • What is an Enduring Guardian?
  • What an Enduring Power of Attorney?

Appointing both an Enduring Guardian and an Enduring Power of Attorney is essential if you want a trusted relative or friend to make important decisions on your behalf in the event that you are incapable of doing so.

8. Who is your Executor?

Appointing an Executor is one of the most important decisions you need to make when it comes to Inheritance Planning. The Executor is responsible for managing your Estate and distributing your assets in the event of your death. The Executor has a number of duties (Executor’s Duties) and responsibility placed on his or her shoulders, so be sure to choose the person carefully.

9. Are you leaving any funds to charity?

Giving to charity establishes a legacy of good will in the event of your death. If you are planning to donate a portion of your Estate to charity, and want to minimise the tax payable, you will need to consider this in Inheritance Planning. There are many ways you can donate to charity including a one-time gift, investing the funds or by giving multiple gifts over time.

10. Is there anyone that might lay claim to your Estate, even if they are not a beneficiary?

If you foresee the possibility of an unhappy family member (or anyone) laying claim to your Estate, you should consider this in your Inheritance Planning. Ask your solicitor about ways to effectively plan for this and you can greatly reduce the risk of Will contests, challenges and disputes. Contact our Wills & Estates Team if you’d like further information.


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