Ok, so you have now drafted a legally binding Will using the 4-step checklist. How about all the other things you need to consider?
The Storage of your Last Will and Testament
Is this really your Last Will and Testament?
Do you have that Will document you drafted 15 years ago and barely remember what was in there? Don’t think that is all that relevant now?
That friend who you are no longer in touch with remembers. There is a chance they will come back to claim part of your estate after you have passed away. Remember the Will where you gave her everything? dah!
This is why it is important to mean it when you say this is my LAST will and testament. Legally you need to make sure that you take all necessary actions to destroy all copies and versions of your previous Wills.
How do you hold the papers together?
There are a couple of things to know when thinking about storage.
This one is a bit of confusing one but you can definitely see why the courts care about this. The law needs to make sure that wishes are adhered to. Anything that put a question on this will put your Will at risk.
The staples in a Will document cannot be removed, nor can the Will document be restapled!
Keep Only One!
It is important to have a Will, and it is important to review it and keep it up to date frequently. But please make sure there is only ever 1 version of your LAST will and testament.
Remember, you won’t be here to clarify anything.
Having multiple copies, even if they are identical and signed and witnessed by the same people, on the same date can cause all kinds of legal problems for your loved ones. If you want to have official copies please simply scan your Will and stamp every page with a “COPY” stamp just to make it super clear.
Has your status changed recently?
Your marital status can affect your Will especially if it has changed since the last time you updated your Last Will and Testament.
For example, keep in mind that your Will cannot act on assets that you own with someone else as joint tenants. The surviving tenant will automatically get ownership of your share in this instance.
What about your underage children?
What if the truly unthinkable happens? Who will take care of your children if you are a single parent, or both you and your partner pass away at a similar time and you have children?
You need to think about who you want to take care of your underage children and under what circumstance. For example, you may wish to keep your child at their current school or continue to provide for them in another way. You will need to consider who can and allocate the money needed to provide for your children based on your wishes.
Superannuation and Insurance
Your superannuation and insurance are the only things that are not automatically paid to your estate once you have passed away. You get the option to nominate a beneficiary for your superannuation at setup, and through your preferences.
You can lodge a Binding Death Benefit nomination or Non-lapsing Death Benefit nomination to your super fund and nominate for your balance and any life insurance to be paid out to your estate in the event of your passing.
Some Binding Death Benefit nominations are only valid for three years, so you will need to renew it. A Non-lapsing Death Benefit nomination generally is in place unless you cancel or replace it but it is important to refer to the rules of your super fund.
With regards to any life insurance outside of your superannuation, pretty much the same rule as above applies. However, it is far more common for your estate to be the beneficiary of your life insurance cover. In fact, your payout will automatically be sent to your estate if you do not nominate a beneficiary and the payout is $50,000 or more.
Your executor will need to know how your super is set up, and if you have any other life insurance policies in place.
Australia Doesn’t Have Inheritance Tax, Does it?
The short answer is no but like mist things, there is a but.
The way you wish to distribute your assets may attract taxes such as Capital Gains Tax (CGT). Your lawyer can help you better manage potential tax implications. CGT can be deferred if that asset is gifted rather than the proceeds from the sales of the asset.
Also please be mindful of beneficiaries who live overseas. They may need to pay local taxes based on the local laws of the country in which they live.
Don’t Forget The Pandas!
OK maybe not the pandas but don’t forget your favourite charities. These may be ones that you have supported or the ones you wish to leave something for.
I do not necessarily know the meaning of life, and I am not going to get into that discussion but it just feels right to leave something for a cause you believe in if you have the means to do so.
What about the after-party?
Of course, you can have some control from beyond the grave. You may choose to include additional wishes in Will such as you Funeral Arrangements such as your speaker wish lists, or even the music that you want to be played.
Other wishes can include your disposal, if you want your body to be buried or cremated and if you wish for your organs to be donated. Of course, by the time your loved ones are reading your Will, it may be a little too late to donate any of your organs. Please make sure you let your loved ones know if you wish to be an organ donor before you pass.
Welcome to the 21st Century
The year 2000 saw the birth of Web 2.0 and the crash of the dot-com bubble. Bittersweet but Web 2.0 did pave the way for sharing information and social media. Today digital assets such as social media profiles and blockchain currencies are increasingly commonplace.
For a comprehensive analysis please refer to our article on how to include your digital assets in your estate planning.
Estate Planning: What About Before You Die?
Enduring Power of Attorney (PoA)
A Power of Attorney is a document that you can use to nominate another person to make decisions on their behalf regarding their finances, business, and personal matters.
An Enduring Power of Attorney will let your agent legally act on your behalf up until you pass away, or if you become incapable of managing your own affairs.
Enduring Power of Guardianship (EPG)
An Enduring Power of Guardianship, or an Advanced Health Directive, also known as a Living Will, is effectively a PoA but for health care.
With an Enduring Power of Guardianship, you can specify how and under which conditions you wish to be treated, what types of medications you wish to use, artificially kept alive and if you wish to be an organ donor.