Estate Planning
You work hard to build your wealth and accumulate your assets. It is important not to lose them on your death or incapacity or to unintended beneficiaries, tax, creditors or family law settlements.
Estate Planning Wills
If you die without leaving a Will, the Law decides how your money and possessions will be divided. Your assets could be distributed in a way that you would never have intended.
If you are married, you may think your spouse will automatically get everything. In fact, this is only the case if your Estate is under a certain value. Your children may have a right to part of your Estate or, if you have no children then your parents, brothers and sisters who survive you, may take a share.
If you are living as a couple but are not married, you may be treated as a single person and your surviving partner may not get anything. If you are a single person, you will want your Estate divided in the proportions you wish amongst friends, relatives and charities of your choice.
As a Will is an important legal document, it should be prepared by your Solicitor. If you have your Solicitor prepare your Will, you can be assured that your assets will be distributed according to your wishes (unless a Court decides otherwise). Your Solicitor will also keep your Will in safe custody, at no additional cost, if you wish.
Estate Planning can be complex. In drafting your Will your Solicitor will give advice and guidance to you on all relevant matters including:
Who to appoint as executors and trustees to manage and distribute your Estate;
Transferring ownership and control of your assets to your preferred beneficiaries;
Protecting inheritances against third party claims from creditors or relationship breakdown;
Minimising tax payable on inheritances;
Understanding asset ownership – what passes through your Estate and what does not;
Superannuation – Binding Death benefit nominations;
Minimising or maximising the size of your Estate to reflect personal circumstances and potential claim, especially in relation to step and blended families;
Guardianship wishes for your children;
Organ/tissue donation; and
Funeral wishes.
On marriage, your Will is automatically revoked unless it specifically states it is made in contemplation of your marriage. Separation does not affect the validity of your Will, however your divorced spouse is not entitled to any assets under your Will unless you specify otherwise.
You may alter your Will at any time and as often as you wish. It is advisable to review your Will regularly, as your circumstances and those of your executors or beneficiaries can change significantly over time. You should consider changing your Will if the following occur:
If you marry;
Birth of children or grandchildren;
If you separate and/or divorce; and
Financial, home or property changes in your Estate
Here at Briese Lawyers we offer you the opportunity to look at areas of your life that are most important to you and help you put in order Estate Plans that meet your specific needs and the needs of your family.
Power of Attorney
There are two types of Power of Attorney – the Enduring Power of Attorney and the General Power of Attorney.
Anyone in business should have a Power of Attorney, particularly if you are the sole operator of a business. If you were to have an accident and was incapacitated, your business may suffer because there is no one to look after it in a legal sense. Although it may be possible to have someone appointed as your guardian or manager under other laws, a Power of Attorney is a quick and economic way of ensuring that your absence does not hinder the administration of your affairs.
Enduring Power of Attorney (EPOA)
An EPOA allows health, personal and/or financial affairs to be dealt with in the way you wish, even (and particularly) if you lose the capacity to make decisions for yourself. For example, if you suffer a head injury, develop dementia etc.
Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interest and sign all necessary legal documents. The power begins:
for personal/health matters - only when you are incapable of making decisions yourself;
for financial matters - you can specify whether the power is to begin immediately, on a particular date or on a particular occasion, such as your incapacity.
Your Attorney can make decisions such as deciding where and with whom you live, or day to day issues including diet and dress, or those relating to basic health care. However, your Attorney can not make decisions relating to special health matters and special personal matters on your behalf, such as making a Will, or making or revoking a Power of Attorney.
If you were to temporarily or permanently lose capacity to make decisions and did not have an EPOA, the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney (could be your spouse, a relative or a close friend). Alternatively, your family would need to make an application to the Guardianship & Administrative Tribunal regarding the management of your affairs.
Your Attorney can only act in your best interests and must act with honesty and care and it is an offence not to do so. In relation to your health care, your Attorney must ensure that any decisions made for you contribute to your health and well being and must take into account the advice of your doctor/health care provider.
General Power of Attorney
A General Power of Attorney is given to someone to make financial decisions on your behalf when you are absent, for example, if you are overseas.
The types of decisions your Attorney can make on your behalf are paying bills, doing your banking, undertaking a legal matter in relation to your property and deciding how your income should be invested.
Advanced Health Directive (AHD)
An AHD clearly states what sort of medical treatment you do and do not want to receive if you are seriously ill and comes into effect when you are unable to make your own decisions.
You may also set out preferences about organ donation and life sustaining medical treatment.
How an AHD works:
you fill out a form with general or specific wishes for treatment; and
your general practitioner certifies that you understand the choices you have made; and
treating medical staff will subsequently refer to your AHD if you can no longer make decisions for yourself.
When entering into an AHD, you should consider:
That you may express wishes in a general way:
• any particular type of medical treatment you do or do not want to receive;• specifics regarding medical conditions that medical staff should know, for example an allergy to certain medications, or diabetes; and
• any religious beliefs that may affect your treatment, such as blood transfusions.
That you may also give specific instructions about what treatment you do or do not want to receive if:
you have a terminal illness;• you have an incurable illness;
• you have an irreversible condition;
• you are permanently unconscious; or
• you are so seriously ill or injured that you cannot survive without a life support system.
That you may state whether you would want any particular type of medical intervention to keep you alive, if you had any of the above
• emergency measures such as CPR;• artificial feeding; and
• a machine to keep you breathing.
Estate Planning can be complex. In drafting your Will your Solicitor will give advice and guidance to you on all relevant matters including:
Who to appoint as executors and trustees to manage and distribute your Estate;
Transferring ownership and control of your assets to your preferred beneficiaries;
Protecting inheritances against third party claims from creditors or relationship breakdown;
Minimising tax payable on inheritances;
Understanding asset ownership – what passes through your Estate and what does not;
Superannuation – Binding Death benefit nominations;
Minimising or maximising the size of your Estate to reflect personal circumstances and potential claim, especially in relation to step and blended families;
Guardianship wishes for your children;
Organ/tissue donation; and
Funeral wishes.
On marriage, your Will is automatically revoked unless it specifically states it is made in contemplation of your marriage. Separation does not affect the validity of your Will, however your divorced spouse is not entitled to any assets under your Will unless you specify otherwise.
You may alter your Will at any time and as often as you wish. It is advisable to review your Will regularly, as your circumstances and those of your executors or beneficiaries can change significantly over time. You should consider changing your Will if the following occur:
If you marry;
Birth of children or grandchildren;
If you separate and/or divorce; and
Financial, home or property changes in your Estate
Here at Briese Lawyers we offer you the opportunity to look at areas of your life that are most important to you and help you put in order Estate Plans that meet your specific needs and the needs of your family.
Testamentary Trusts
A Testamentary Trust is often a more effective alternative than making a direct gift to a person under a standard Will and has significant advantages in protecting your Estate.
A Testamentary Trust is a discretionary Trust, created in your Will, where a Trustee holds property, business or investments on trust for the benefit of specified beneficiaries.
The Trustee has the discretion to distribute income and capital of the Trust to the beneficiaries subject to any specific terms of the Trust which may, for example, preserve the capital or a portion of it.
The Trust comes into existence only upon your death.
Advantages of Testamentary Trusts:
Tax advantages - by distributing income between beneficiaries, the Trustee is able to manage the total income tax payable by the group. Under a Testamentary Trust, minors are treated as adults and obtain the benefit of the tax free threshold, low income rebates and varying tax brackets;
Protection from relationship breakdown - if a beneficiary is involved in matrimonial property proceedings or a defacto property claim, the Trust may be used to keep the inheritance separate from their own assets and thus quarantined from a claim by the separated spouse;
Protection from bankruptcy - if a beneficiary has financial difficulties, including bankruptcy, the assets held by the Trust will be protected from creditors;
If a beneficiary is under an incapacity, such as an intellectual handicap, alcohol or drug dependency, or it may just be that they cannot handle money, the gift can be controlled by others through the Trust;
You can still exercise some control over how the Trustee handles the Testamentary Trust and can preserve the capital;
Education - a more tax effective method of providing for payment of school and tuition fees for children/grandchildren;
Remarriage of spouse - where you wish to provide for your spouse, but may be concerned that the spouse may remarry and divert the family assets to the new family, or use the family assets in a risky or unprofitable venture at the suggestion of the new spouse, the gift is protected by the Trust;
Generational succession - a Trust can be used to protect the inheritance for your children and subsequent generations whilst still providing for your spouse/partner;
Your beneficiary's Estate - if your beneficiaries receive your Estate in a Trust, and it remains in a Trust, it cannot be subject to a Will challenge when they die as it will not be part of their Deceased Estate and the benefit of the Trust will automatically pass to their children (or siblings).
Only assets that are in the deceased person’s name at the time of their death are included in the Trust. Therefore, it is important that insurance policies and ownership of jointly owned properties are reviewed by a Solicitor and consideration given as to whether they will form part of the Trust.
When considering a Testamentary Trust, it is important to note:
Common areas that require consideration are:
• whether to have one or several Trusts established under a Will;
• the selection of the Trustee/s;
• the method of appointing replacement Trustees;
• whether the beneficiaries be limited to your descendants only;
• whether some classes of beneficiaries are restricted to income and some to capital; and
• whether beneficiaries should include an expanded form so as to include related companies and Trusts (these provisions are commonly found in the normal Trading Discretionary Trust).
It costs more to have a Will which sets up a Testamentary Trust. There are usually some additional annual costs in operating the Trust, particularly in accounting expenses, however this only applies after you die; and
Should a spouse, child, or financial dependant contest the terms of your Will, your assets which form part of the Trust are treated the same as all other assets of the Estate for the purposes of an application for possible Family Provision claims.
Further details with respect to Estate Planning and Testamentary Trusts may be obtained by contacting one of our Solicitors, who can offer practical legal advice and guidance.
Here at Briese Lawyers we offer you the opportunity to look at areas of your life that are most important to you and tailor Estate Plans that meet your specific needs and the needs of your family.
Estate Administration
The death of a loved one is very traumatic and the administration of their affairs, having to deal with financial institutions, selling property and administering the Estate can be stressful for grieving family and relatives.
One of the first things loved ones should do is determine who the deceased appointed to be Executor of their Estate. If the deceased person has left a Will, an Executor will be appointed to be the deceased’s personal representative in administering their Estate. An Executor will ensure that the wishes set out in the deceased person's Will are carried out upon their death.
The first duty of the Executor is to arrange the funeral. It is important that the arrangements for the funeral are appropriate bearing in mind the wishes of the deceased, as expressed in the Will or in the absence of the Will, as expressed personally to family or friends. Whoever arranges the funeral is entitled to reimbursement of the expenses out the Estate in priority to all other claims against the Estate.
The duties of an Executor may include:
1. Immediately:
Attending to funeral arrangements;
Locating and examining the Will. The deceased's Will may be with their personal papers at home, or held in the safe custody of their Solicitor, or left with a friend or relative;
If the deceased has appointed guardians for orphaned children, arrangements will need to be made for their care and welfare;
Arrangements may also need to be made for pets of the deceased;
Securing the assets of the Estate.
2. Administration of the Estate cannot commence until a Death Certificate has been issued, of which the funeral home will make the necessary arrangements. It generally takes approximately 4 – 6 weeks for the Certificate to be issued, at which time the Executor can commence the process to finalise the Estate, which may include:
Obtaining a Grant of Probate from the Supreme Court of Queensland if required. Specific legal advice should be sought in relation to the appropriate application that should be made and as to whether a grant of probate or grant of representation is required.
Verifying, valuing and collecting assets of the deceased. There may need to be consultation with the deceased’s accountant, legal representatives and financial advisors to fully ascertain the extent of the deceased’s Estate;
Identifying and verifying the deceased's debts;
Locating and advising beneficiaries of their entitlements as set out in the Will;
Paying debts and tax liabilities of the deceased person from funds in their Estate;
Investing surplus funds for the benefit of beneficiaries;
Seeking instructions from beneficiaries;
Dealing with disputes over the provisions of the Will;
Obtaining income and land tax clearances;
Transferring real property;
Preparing final income tax returns for the deceased and the Estate;
Making a final distribution of assets in the Estate to beneficiaries.
In the process of identifying the assets of the Estate, the Executor should ensure that all assets are appropriately secured and insured, which will preserve them while waiting for finalisation of the Estate.
What is Probate
A Grant of Probate is recognition by the Supreme Court of Queensland that a Will is the last legally valid Will of a deceased person.
The recognition of the Court allows the Executor to take control of the assets of the Deceased Estate and gives that person the authority to deal with the world at large in relation to the distribution of the deceased's property.
In recent years the need for a Grant by the Courts has been relaxed although need for Probate in any Estate is largely governed by the attitude of financial institutions (such as banks), Insurance companies and the like. An application for a Court Grant is still however necessary in a large number of cases.
Without a Grant by the Court, the Executor can be personally liable to disappointed beneficiaries. It is not a course that should be taken lightly. To determine whether a Grant of Probate is needed, the Executor must contact the organisations with which the deceased held assets to determine the organisations' requirements for transfer of those assets to the Executor or the beneficiaries.
An application to the Court incurs costs in advertising of the application in a newspaper, Court lodgment fees and legal costs. The steps involved are as follows:
Advertise the intention to apply for Grant of Probate in a local newspaper and Queensland Law Reporter;
Serve notice of the Intention to apply for Grant of Probate upon the Public Trustee;
Prepare affidavits for signing by the Executor and any person renouncing any right; and
After expiry of the 14 day notification to the Public Trustee, file application documents with the Supreme Court of Queensland.
After obtaining the Grant of Probate by the Court, the terms of the deceased‘s Will can be applied and the Executor can attend to the finalisation of the Estate by closing banks accounts, transferring shares and real estate, motor vehicle ownership, lodging tax returns etcetera and distribution of the assets.
What if There is No Will?
If the deceased did not have a Will, then their family should seek legal advice as soon as possible. An application should be filed in the Court for Letters of Administration, which will appoint an Executor with the authority to deal with the Deceased Estate and will allow the Estate to be finalised and assets distributed in accordance with State laws of intestacy.
Here at Briese Lawyers we can provide assistance and support during the finalisation of a loved one's Estate, with sensitivity and respect.
Meet Our Estate Planning Team
Explore the expertise and dedication of our Estate Planning Team at Briese Lawyers. Our team is devoted to guiding you through the complexities of Estate Planning with care and precision. From crafting comprehensive Estate Plans to navigating probate, our team are here to support you every step of the way. Discover the personalised approach & commitment to excellence that define our Estate Planning Team and learn how they can help you take control of your family’s future & secure your legacy with confidence.
