5 Reasons to Think About Your Estate Planning Yesterday

July 3, 2018

Estate planning means something different for everyone.  In the simplest of terms, it can mean having a valid Will and Enduring Power of Attorney.  In the most complex of terms, it can be mean trusts, companies, binding death benefit superannuation nominations, crafted powers of attorney, end-of-life care and a myriad of other things.

BUT, for every person, there are 5 main points everyone should consider no matter your age or circumstance.

1. Guardianship of children

For people with minor children, one of the biggest worries for them is answering the question as to who is going to care for their children if anything happened to them.  Even if you have limited assets or means, your Will should formally appoint a guardian for your minor children.  One clause can say it all and ensure your children have someone to help them and protect them into a future.  You may also want to give your guardian some directions and guidance as to what kind of upbringing you want for your children.

2. Who will receive your estate when you go?

When it comes to planning, you have to consider all the possible outcomes.  You should think about what might happen if you pass away without a Will and what that even means for you. The question of who receives what from your estate when you go will depend on who you’ve left behind.

You should also consider what happens if the person you’ve mentioned in your Will passes before you and what your ‘worst-case scenario’ looks like. Does it achieve what you think is right? Do the right people receive the result of all of your hard work?

The question of who receives an inheritance from an estate if they pass before or after the will-maker passes away can be a complex legal question and can all come down to timing.  While no one has a crystal ball to determine what is going to happen, you may be able to plan around the foreseeable possibilities.

3. Passing control of companies and trusts to the right people

It is increasingly common to have a trust or be a director or shareholder of a company in today’s society. The question for many of our clients is what centered around what all that means in the event they pass away or lose the capacity to manage your own affairs.  The short answer is that it depends; on the terms of the trust or the rules of the company when it was all set up. There will be different answers in relation to someone passing away or someone losing the capacity to manage their own affairs in relation to trusts and companies, and it all starts with reading the rules that apply to those structures.  Importantly, when it comes to business, you might want to consider who the right person might be to take over for you and run the business – either temporarily or permanently – if you can’t do it yourself.

4. Protection of assets and family

When considering the impact of your passing or losing incapacity, understandably people turn on their “protection mode”. They want to protect their beneficiary’s inheritance or ensure that the inheritance finds its way to the beneficiaries’ hands for their benefit. Often the benefits a beneficiary receives as a result of someone passing away may flow from superannuation death benefits and life insurance just as much as the proceeds of sale of the family home. However, without estate planning advice, it can be easy to mistakenly direct those proceeds into the wrong hands or expose the inheritance to dispute and argument. This can occur through no fault of the will maker’s and simply by a lack of information or awareness. Common issues such as bankruptcy and family breakdown can interrupt the journey of beneficiary’s inheritance.  Although these types of issues aren’t always foreseeable, there are various strategies that can be discussed and tailored to suit a person’s needs and try to avoid these disruptions.

5. Making decisions for you during life

So, you’ve thought about everyone else – what about your protection?  If you don’t have a valid Enduring Power of Attorney, you may leave it to a Court or Tribunal to decide who should manage your affairs and make decisions for you.  Managing the affairs of someone could be as simple as paying an electricity bill or as complex as decided on where someone with impaired capacity should live and receive care. With such significant power and responsibility, you should have the person you trust most in that position and leave nothing to chance.

In summary

Fundamentally, investing in your estate planning is an insurance plan for your future.  Just like you maintain insurance for your house or car, you insure against the worst-case scenario where your intentions and objectives are not met.

Each person’s plan is going to be different because it is a reflection of them and their loved ones. If now is the time to start thinking and crafting a plan right for you and your family, we highly recommend you get in touch with our succession lawyer, Michele Davis, to talk about your circumstances, family and your objectives to make sure that all your hard work flows through to those you intend to benefit in the long term.

You can contact Michele on 07 3392 0099 or by email at


Important Notice: This publication is provided as general information only and should not be considered or relied upon as legal advice. The law is complex and you should always obtain specific legal advice about your circumstances from a qualified legal practitioner. If you require legal advice, please contact our office to see how we can help.