How to Get Your Estate Planning in Order

Estate planning is a critical part of ensuring that your assets and wishes are properly managed and honoured after your death. For adults, new parents, and seniors in Australia, understanding the steps involved and the relevant legislation can offer peace of mind and protection for your loved ones. This guide will walk you through the essential steps of estate planning.

Understanding Estate Planning

Estate planning refers to the process of arranging for the management and disposal of a person’s estate during their life and at death. It typically includes the preparation of a will, establishing trusts, appointing guardians for minor children, and designating power of attorney.

Key Components of Estate Planning

  • Will: A legal document that sets out how you wish your assets to be distributed after your death.
  • Trusts: Structures that can hold assets on behalf of beneficiaries, often used to manage and protect assets.
  • Power of Attorney: A legal document appointing someone to make decisions on your behalf if you become incapacitated.
  • Guardianship: Appointing a trusted individual to care for your minor children if you are no longer able to do so.

Step 1: Preparing a Will

The first step in estate planning is preparing a will. In Australia, a valid will must be in writing, signed by the testator (the person making the will), and witnessed by two people who are not beneficiaries.

Why You Need a Will

A will ensures that your assets are distributed according to your wishes. If you die without a will (intestate), your estate will be distributed according to the intestacy laws of your state or territory, which may not align with your preferences.

How to Create a Will

  • List Your Assets: Include all your assets, such as property, bank accounts, investments, and personal belongings.
  • Choose Beneficiaries: Decide who will receive your assets. This can include family members, friends, and charitable organisations.
  • Appoint an Executor: Select a trustworthy person to manage your estate and ensure your wishes are carried out.
  • Sign and Witness: Sign your will in the presence of two witnesses, who must also sign the document.


Step 2: Establishing Trusts

Trusts can be an effective way to manage and protect your assets. They can provide tax benefits, protect your assets from creditors, and ensure that your beneficiaries receive their inheritance in a controlled manner.

Types of Trusts

  • Testamentary Trust: Created by your will and comes into effect after your death.
  • Living Trust: Established during your lifetime and can be used to manage your assets if you become incapacitated.
  • Special Disability Trust: Designed to help families plan for the future care and accommodation needs of a person with a severe disability.

How to Establish a Trust

  • Choose a Trustee: Select a reliable person or corporate trustee to manage the trust.
  • Determine the Trust’s Purpose: Clearly define the purpose of the trust and how the assets should be managed and distributed.
  • Draft the Trust Deed: A legal document outlining the terms and conditions of the trust.
  • Transfer Assets: Move the assets into the trust.


Step 3: Appointing Power of Attorney

Appointing power of attorney is crucial in ensuring that your financial and personal affairs are managed if you become incapacitated.

Types of Power of Attorney

  • General Power of Attorney: Grants broad powers to manage your affairs but becomes invalid if you lose mental capacity.
  • Enduring Power of Attorney: Remains in effect even if you become mentally incapacitated.
  • Medical Power of Attorney: Specifically grants authority to make medical decisions on your behalf.

How to Appoint Power of Attorney

  • Choose an Attorney: Select a trustworthy and capable person to act on your behalf.
  • Define the Powers: Clearly outline the scope of the powers you are granting.
  • Complete the Form: Fill out the appropriate form for your state or territory.
  • Sign and Witness: Sign the form in the presence of a witness.


Step 4: Appointing a Guardian for Minor Children

If you have minor children, appointing a guardian ensures that they are cared for by someone you trust if you are no longer able to do so.

How to Appoint a Guardian

  • Select a Guardian: Choose a responsible person who shares your values and parenting philosophy.
  • Include in Your Will: Clearly state your choice of guardian in your will.
  • Discuss with the Guardian: Ensure that the person you have chosen is willing and able to take on the responsibility.


Understanding Australian Legislation

Australian estate planning laws vary by state and territory. It is essential to understand the legislation relevant to your location to ensure that your estate plan is legally sound.

Key Legislation by State/Territory

  • New South Wales: Succession Act 2006
  • Victoria: Administration and Probate Act 1958
  • Queensland: Succession Act 1981
  • South Australia: Wills Act 1936
  • Western Australia: Wills Act 1970
  • Tasmania: Wills Act 2008
  • Australian Capital Territory: Wills Act 1968
  • Northern Territory: Wills Act 2000

Estate planning is a crucial step in protecting your assets and ensuring your wishes are honored. By creating a will, establishing trusts, appointing power of attorney, and appointing a guardian for minor children, you can provide for your loved ones and achieve peace of mind. Understanding Australian legislation and seeking professional advice can further ensure that your estate plan is legally sound and effective.

Don’t delay—start your estate planning today to secure your future and the future of those you care about.

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