Estate planning is one key component of financial planning, it’s part of the overall plan that focuses on what happens to your assets once you die, in order for it to be effective it needs to be addressed well before this occurs.
Estate planning aims to ensure that upon a client’s death:
- There are sufficient assets available to meet the clients wishes
- That transfer of ownership , or control of those assets pass to the appropriate person or entity and protection of your estate
- That ownership or control passes to the beneficiaries at the right time
Simple put, estate planning involves ensuring that on a clients death, the appropriate assets go where the clients wants them to go, when they intended them to go there in the most tax effective manner.
At the time of death means that the deceased’s estate planning funding objectives can be met for, that any shortfall in funding has been put in place well before death example have sufficient assets to pay any liabilities
Transfer of Ownership and control
How will ownership/control be transferred, is there a current will in place, what are the ownership structures of the assets eg jointly owned or tenants in common, is the estate plan tax effective, should a testamentary trust be considered, would a beneficiary be better served by not receiving direct ownership of an asset as the assets would then be available to:
- Family court ruling due to breakdown of marriage
- Bankruptcy proceeding
- Personal liability claim against the beneficiary of your estate
- Professional negligence claim
Timing is quite critical in estate planning for a number of reasons:
- Age of the beneficiary should receive their inheritance example 18,21, or 23 or older
- When the assets should be sold to reduce impact of capital gains tax on transfer of ownership
- Who should sell them (executor or beneficiary )
- When debts must be repaid
A will is a legal document that enables a person to appoint a designated person (the executor) to carry out their final directions and to dispose of their assets after death to whom they wish benefit. A will can only dispose of assets that the deceased owns in his or her own right. Executors are commonly beneficiaries, someone who you trust or a professional such as account, solicitors or even public trustee
Without a will or dying with an invalid (a will maker must have testamentary capacity meaning the person making the will is of sound mind at the time the will is made) will is known as dying intestate in such an event, your assets will be distributed according to state laws which may not be as you intended and it may also impose tax liabilities for your beneficiaries unnecessary. Having a will is especially important for people with young children, because it gives the opportunity to designate a guardian for them in the event of death. Without a will, the courts will appoint a guardian for your children.
A will should always be current and be change when your circumstances change, eg birth of child, divorce, or remarriage, keeping it current ensures your assets end up with your intended beneficiaries.
Your superannuation is an asset excluded from your will as it is held in trust for the benefit of the member. Any benefit payable upon death is distributed in accordance with the super fund trust deed at the trustee discretion. Eligible beneficiaries are detailed in the superannuation legislation and include your dependents, your spouse, children and financial dependents or a person in an interdependency relationship with you.
The member of a superannuation fund can elect to have a preferred beneficiary by nominating a binding beneficiary to the super trustee in writing in the event of your death, the nomination change be changed or cancelled at any time by making a declaration to the trustee in writing.
A testamentary trust is a discretionary trust that is created via a will and is activated as a result of death. The trustee has discretion to distribute the assets and income of the trust, like any trust, the trustee must act in accordance with the trust deed and has the responsibility over the assets in the trust, this responsibility includes allocating income and capital amongst beneficiaries. The trustee can take into account the other income of beneficiaries prior to distribution minimise tax and maximise the amount distributed to beneficiaries
Powers of Attorney
Granting a power of attorney means you legally appoint a person, company or body corporate to make legally binding decision on your behalf. Powers of attorney can be quite encompassing (General Power of Attorney) or very limited in the powers that are granted (limited power of attorney).
Types of powers of attorney
- General power of attorney
- Enduring power of attorney
- Enduring power of attorney for medical treatment
The general power of attorney and the enduring power of attorney relate to assets, while enduring power of attorney for medical treatment covers health treatment and survives mental incapacity of the donor (the person who gave the power of attorney)
Enduring Power of Attorney
The enduring power of attorney is suited to looking after the affairs of a person when he or she is no longer able to look after their affairs themselves. An enduring power of attorney continues to be operative when the donor becomes mentally incapacitated.
Enduring Power of Attorney for Medical Treatment
Enduring power of attorney does not allow medical decisions to be made, therefore enduring powers of attorney for medical treatment needs to be appointed separately.
The appointment of an attorney for medical purposes only becomes valid if when you are unable to make decisions regarding medical treatment, this can happen permanently, that is through dementia, or it might happen temporarily, such as if the person is unconscious as a result of an accident.