[This is a lawyer’s blog, what do you think the answer is going to be?… read on anyway if you’re not yet convinced]
At the beginning of March when Australians were facing potential death in the hundreds of thousands, the thought may have crossed your mind, ‘perhaps I should make a Will.’ Now with the curve flattening, you think – ‘Nope all good. I dodged that bullet. I don’t need to worry about a Will just yet.’ COVID-19 aside, we are all going to ‘The Good Place’ at some point, so stay focused!
Some people die with no Will, for example The Artist formerly known as Prince. When the court ordered Prince’s estate to be distributed to his siblings, up to 700 people came forward to have their DNA tested on the off chance they were his long-lost brother or sister. Okay, our source is The Daily Mail, but you get our point – why should any of these strangers have an equal claim with Prince’s known and loved family? Other people like Aretha Franklin die with multiple ‘Wills’. In Aretha’s case, her formerly close family is in disarray and plenty of dirty laundry has been aired. In both examples there have been years of litigation, disputes, claims and counter claims. The estates have yet to be distributed and millions of dollars have been spent on lawyers and accountants.
We have chosen some rather extreme and high-profile examples to make our point, which is this, the negative effects of your failure to properly consider the needs of your family will be felt for generations and can be avoided.
Here are some of the excuses we hear for not putting in place an estate plan and our responses:
Wills are successfully challenged all the time so what is the point in making one?
Let’s suppose this is true (it isn’t, but let’s pretend). In every jurisdiction in Australia, bar NSW, the assets vulnerable to a Will challenge are those assets that pass through your Will, i.e. assets owned in your own name. Part of the job of your estate planning lawyer is to assess the risk of a successful challenge and suggest ways to reduce the value of the assets that are vulnerable.
Your lawyer can advise on the best way to own your assets so that they end up with the right people. We may suggest you transfer assets to a trust, change the way you own your house, perhaps put bank accounts in joint names or make a binding death benefit nomination for your superannuation death benefits. There are many things you can do to reduce the possibility of your estate going to the wrong people.
I trust my family “to do the right thing”.
The ‘right thing’ inevitably means different things to different people. Just read Jane Austen’s ‘Sense and Sensibility’ (or watch the movie). Giving one family member the power to decide what another family member inherits just causes problems. Surely, ‘iso’ has taught you that your children can fight over anything! Further, you have now lost your opportunity to leave your family their inheritance in a tax efficient and protective way.
I don’t like lawyers
‘The first thing we do, let’s kill all the lawyers!’ Shakespeare didn’t like members of the legal profession and neither did Aretha Franklin, hence her three handwritten Wills that are now being disputed (by lawyers). You may be tempted to have a go yourself or even purchase a Will Kit. Either way, inevitably you will get something wrong and it all ends up with the lawyers anyway. Ring around, get recommendations, check out some websites and find a lawyer that speaks your language. Finding a legal adviser you can trust is going make life better.
There are too many decisions to make – I’ll do it later.
There are decisions that must be made in making your Will, sometimes hard decisions, but trust us, your hospital bed is not the place to be making them!
Blended families often struggle with the question of how to look after your spouse and children from a previous relationship. The solution needs to be considered early in the piece so you can maximise your options. At least consider putting in place a workable solution rather than a perfect solution.
What about estranged family members or vulnerable family members? How do you deal with them? We’ve been doing this for a while now (over 20 years) and we have come up with plenty of useful and fair options for families that have some ‘skeletons’! Don’t try and reinvent the wheel. Most of the issues you have struggled with are not unique to your family and there are some good solutions available.
I’m too young to need a Will.
We wish this were true but bad things can happen to even young, single people. Your death or incapacity is not the time when your grieving family should have to start doing a lot of paperwork or applying to court for the right to make decisions for an adult child who has suffered a devastating work or holiday injury.
Even with the simplest estates, you can make things easier for your families by having in place Wills, binding death benefit nominations, enduring powers of attorney and advance care directives.
How can we help?
We can help you with the decision-making process involved in the making of an estate plan and prepare the necessary documents on your behalf. If you need more information about estate planning and the sorts of things you need to think about, we have a treasure trove of information on our website. Call us on 1300 654 590, we will help you to understand what you need to do and guide you through the process.