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Wills and Estate Planning Adelaide: Wills, Trusts and Estate Planning for New and Young Parents

Wills, Trusts and Estate Planning for New and Young Parents

New and young parents often mistakenly consider that have too few assets to bother with creating an estate plan.

They probably have a home with just a small amount of equity, and hopefully they have decent jobs, and reasonable prospects for advancement.

Most of us have superannuation, and many super funds carry life insurance.  In dollar terms, it is not uncommon for young people to be worth more dead than alive.

When considering estate planning they should think about naming a guardian for their children and to make sure their money goes to the kids.

Most people grossly underestimate the money it will take to raise their young children and educate them. They frequently only have a small fraction of the life insurance that is needed. Fortunately, term insurance is relatively inexpensive for young people.

They should consider establishing a Trust to receive the insurance and other assets. This can be done through a Testamentary Trust created in their Will, or as a Discretionary Trust.

A trust provides some asset protection, and professional management for the funds.

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5 Common Estate Planning Mistakes

Wills and Estate Planning Adelaide: Star Trek and Estate Planning

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Of all the countries in the world, Australia ranks in the top 5 with longest lifespans (17 places ahead of the UK and 33 places ahead of the USA).  Each year, our average life expectancy continues to increase.

And yet, more than half of adult Australians do not have a legal Will, and even fewer have an integrated estate plan.

Life used to be simpler. People worked for the same employer for their entire career. They had government-guaranteed pensions. Medical expenses were manageable. Divorce was rare and remarriages rarer still.  25 years ago, when my legal career began, I can clearly recall the expression “broken home” being used as an excuse for various misconduct. Most people were not invested in the stock market.

But, the trade-off was that although life was simpler, it was also significantly shorter. Retirement didn’t last long, so people didn’t worry as much about having sufficient savings to last a lifetime. Long periods of incapacity were unusual.  You worked, then you died.

When the Australian Government began the aged pension in the 1920’s, they set the age-of-eligibility at 65 for men.  At that time, the average life expectancy for men was only 63, so the Government did not expect to have to pay out much for the pension, nor medical treatment, aged care or publically assisted accommodation.

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Genders and Partners | Wills and Estate Planning - Lawyer Adelaide

Wills and Estate Planning Adelaide: Is it Time for The Talk?

Challenging Estate Planning Conversations

Is it Time for The Talk?

In family life there are a number of “Talks” which parents need to have with their children. Remember “Where do babies come from?”

Well, much later in life, older parents need to talk to their adult children about Wills and powers-of-attorney, elder care and end-of-life decisions.

In my practice as a lawyer specialising in estate planning, I have repeatedly noticed that my older clients are generally much more willing to discuss estate planning issues than their adult children.

I have speculated as to the reasons for this, and have come up with a list of possible explanations:

  • Fear of being seen as interfering in their parents’ affairs;
  • Concern at how their interest in their parents’ estates may be interpreted by others;
  • Discomfort at confronting the mortality of their parents;
  • A recognition that parents are getting older, and perhaps their best health is behind them;
  • A perception of “passing the baton” from one generation to the next.
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Genders and Partners

Wills and Estate Planning Adelaide: The Benefit of Advance Directives

The Benefit of Advance Directives

A recent study in the New England Journal of Medicine, shows one in four elderly people require someone else to make decisions about their medical care at the end of their lives.

These findings support the value of advance healthcare directives as a means of making end-of-life treatment preferences known (sometimes called anticipatory directives or living wills).

The study found that such formal estate planning documents improved the likelihood that a patient’s wishes would be followed and reduced emotional trauma among family members.

The results illustrate the value of people making their end-of-life wishes known in an advance directive (living will) as well as designating someone to make treatment decisions for them before the end-of-life stage.  This is why both a Natural Death Advance Directive and a Medical Power of Attorney are necessary parts of a modern integrated estate plan.  Each document fulfils a specific purpose.

The Associated Press reports: “In the study, those who spelled out their preferences in living wills usually got the treatment they wanted. Only a few wanted heroic measures to prolong their lives. The researchers said it’s the first accounting of how many of the elderly really end up needing medical decisions made for them.”

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Genders and Partners

Wills and Estate Planning Adelaide: Estate Planning Challenges of Blended Families

As more Australians get married more than once, estate planning issues involving blended families are becoming more common.

Estate Planning Challenges of Blended Families

A blended family is where there are children from more than one relationship and they raise particular challenges for estate planning.

A typical example is where a man has children with his first wife, then re-marries a younger woman and has additional children with her.

Because marriage automatically revokes all prior Wills, his older children may be concerned that his new wife and her children may influence him to their advantage, at the expense of the older children’s inheritances.

This is a growth area for lawyers who work in the area of Family Provision claims, where Wills and estates are challenged in Court.

If you have a blended family, you need to exercise considerable caution when creating your Will and estate plan.

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Genders and Partners

Wills and Estate Planning Adelaide: Estate Planning to Show Your Family You Love Them

Estate Planning to Show Your Family You Love Them

How can you show your love for your family even after you are gone? None of us knows what the future holds. My godfather died in his 20’s and he left his young wife with a 3 month old baby to take care of. It doesn’t matter what stage of life you are in, you need to be prepared.

Here are a few practical steps to help you be prepared from a financial and administrative perspective.

1. Create a legal Will and keep it up to date.

Even if you don’t think you have a lot of assets, you need to have a Will because you don’t want the government to dictate what happens to your property after you are gone. It will save your family a lot of time and grief, because getting an estate in order after someone has died without a Will can take a lot of time and money.  You may be surprised by how many possessions you own … Super, life insurance, a car … it all adds up.

It is important to discuss who will care for your children if something should happen to both parents. It is certainly a hard decision and there are many factors to consider.

Don’t risk a DIY Will-kit. They are little more than expensive pieces of stationery, and offer no backup or support. They even say on those kits that they are not intended as a substitute for legal advice!  They are the cause of a growth-area in estate-litigation, because so many people make mistakes with them. The problems will only show up after you’re dead and gone.  Then it’s your family & loved ones who have to wear the cost and all the delay and heartache to try to fix it all afterwards.

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Accommodation after Death?

This isn’t the beginning of a joke about the person who died and went to Heaven… It’s a serious estate planning question about how a family-member might continue to live in a property after the owner has died.  This question frequently arises (where a spouse, child or sibling was living with the deceased), and it is often the cause of unnecessary concern & anxiety.

Following your death, family-members may have a challenge in finding new accommodation quickly; they may not have the finances available and if the house is sold quickly, could be rendered homeless.

Is there some way to delay the sale-after-death for a reasonable period to allow the family-member some time to adjust to his new circumstances; to cope with the grief of losing you, and to build-up finances towards a deposit for his own property or to find a suitable home to rent and move out?

Yes – there IS a way!  In your Will, you can create a testamentary trust leaving the house on trust, to be used by the intended person (let’s call that person the Tenant), with a clause in your Will saying that the Tenant can stay in the property for the agreed period.

The trustees of the house won’t be allowed to sell it without the Tenant’s consent.  It is not theirs to sell.

Your Will can contain all sorts of additional conditions, such as whether the Tenant will be obliged to insure the house correctly, pay rent and keep it in good repair.

There may be an agreement that the Tenant can move to a replacement property under the same terms, say if the original property becomes too much for the Tenant to mange and maintain. If a replacement house of less value is purchased the spare funds will go into the deceased’s residuary estate.

This, of course, only works if the property can be passed on this way in a Will and the house isn’t required to be sold immediately for cash for a particular reason, perhaps to clear a tax bill or to pay a specific monetary legacy.

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Genders and Partners

Wills and Estate Planning Adelaide: Organ Donation as part of your Estate Plan

There are a number of ways in which you can make an anatomical gift, which is a gift of your organs, body parts or your entire body for transplant, therapy, research or education.

Although you can put a clause in your Will or other properly signed and witnessed documents, it is best to sign up on a nonprofit organ donor registry such as the Australian Organ Donor Register.

This registry is a confidential computerised database that documents your wish to be an organ, tissue and/or eye donor. It integrates with the various state Departments of Motor Vehicles to note upon your drivers licence at the time of renewal.

In your medical power of attorney, you could give the power to make an anatomical gift to your medical agent, who would then have the authority to make a gift of all or part of your body in accordance with your previously-expressed wishes.

You may have a concern that your life might be ended prematurely in the interest of harvesting your organs. By law, every effort has to be made to prolong your life in accordance with your wishes, before an anatomical donation is considered. Also by law, the medical team treating you must be separate from the transplant team.

Generally, with the exception of gifts during your own lifetime such as blood, a kidney or bone marrow, body-part recoveries can only be pursued after all life-saving measures have been exhausted and you are officially declared dead.

There are no guarantees with anatomical gifts. Just because you direct that your body or parts be used for transplants, therapy, research or education, does not necessarily make it so. Your anatomical gifts must be examined and be acceptable to the medical school, anatomy department or organ transplant team.

There always is a need for bodies and body parts. There are long waiting lists for people in need of transplants. Even if your eyesight is poor, you may have a good transplantable cornea that could give somebody the gift of sight. You may have skin that can be used to aid a burn victim or bone that could be used for an accident victim.

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Genders and Partners

Wills and Estate Planning Adelaide: Estate Planning for Children with Special Needs

Estate Planning for Children with Special Needs

Most parents of disabled children worry about the day they won’t be around to help care for them, whatever their age.  They want to help them qualify for government (state or federal) assistance for medical and other services, and also to provide for their recreation, clothing and other small luxuries that improve the disabled person’s quality of life.

The difficulty for these parents, is in trying to grapple with the too-hard decision of who will look-after their children after the parents have gone. Many cannot overcome this emotional-paralysis, and simply hope against hope they will live just slightly longer than their child, so that neither parent nor child ever have to deal with the situation.

The reality is that most disabled children outlive their parents, so providing for their care after the caregiver’s death is a vital issue. If the parent simply leaves money for the child, it could disqualify the child for government assistance, but still not provide properly for the child’s special needs.

A special needs trust may present a solution. A lawyer specialising in the legal needs of the elderly and disabled, can help the parents or other family members to set up a trust.  With careful planning (both legal & financial), the assets may not be taken into account by the government when assessing the child’s entitlement to assistance, but distributions from the trust are used to provide greater comfort & independence for the child.

In this way, even after the parents have died, they can continue to care for their children. This can assist children with a variety of disabilities, including Down syndrome, autism, cerebral palsy, the aftermath of vehicle accidents, chronic diseases or anyone who may need a combination of government and private services to provide a good quality of life.

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Genders and Partners

Wills and Estate Planning Adelaide: How Estate Planning Trusts Can Protect You and Yours

How Estate Planning Trusts Can Protect You and Yours

Estate planning and trusts are all about planning, not only for your own future, but also the financial well-being of your family and loved ones after you’re gone. However, the reality of life can often get in the way of a smooth transition – divorce, second marriages, step kids, long-term illness and other family changes can sometimes make life and plans unpredictable.

Protecting your wealth & assets and the financial well-being of your family is about a lot more than simply parcelling-out your assets – it’s about providing for yourself & your family members in a way that’s responsible and specifically addresses your personal situation.

Many people make the assumption that estate planning and trusts are only for incredibly rich people. That is wrong.

A family discretionary trust is a very versatile estate planning tool that allows you to address inheritance goals for your beneficiaries – who may still be children, are disabled, are from a mixed family  – and a trust might be the answer to difficult questions like who will manage your assets if you or they become incapacitated.

Typically, when a child inherits money, it is invested for him and held until he or she turns 18 or older. Of course, giving a young person access to a large amount of money at the age of 18 can be dangerous and detrimental to their long-term financial health if they lack maturity or sufficient financial wisdom.  Some parents think that the lure of fast cars and endless parties may be too great a temptation for their beneficiaries to handle at age 18, and so they specify an older age, frequently 21 or 25.

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