WILLS
Every person who owns assets needs a Will to leave their instructions for how they wish their assets to pass on their death.
A Will is a very important legal document, as it documents your instructions for how your assets pass following your death.
When a person dies without leaving a valid Will, the estate passes to the persons set out in the intestacy provisions under the Administration Act 1903, which may include a spouse, child, parent, sibling, niece or nephew.
In the event that a person dies without leaving a properly executed Will, legal advice is usually required to assist with the complex legal issues that may arise in administering the estate, which can be expensive.
You may wish to obtain legal advice with respect to the preparation of your Will in relation to your specific financial and or family circumstances.
Preparing a Will with a solicitor ensures that all of your estate is dealt with so that there is no partial intestacy, to provide advice on specific bequests, and to ensure that your Will is executed correctly and valid. A solicitor will also provide advice in relation to potential claims against your estate and or superannuation benefit.
Issues can arise where a person prepares a Will without legal assistance where a Will is not executed correctly, all of the estate is not dealt with, provision is not made for how a benefit is to pass if a beneficiary predeceased the Will maker, and these issues may result in expensive legal fees in dealing with the issues that may result in the administration of the estate.
SUPERANNUATION BENEFICIARY NOMINATIONS
Many people have superannuation however, not all of us are aware of how the benefit will pass upon death.
It is not automatic that a person’s superannuation benefit will be paid to a nominated beneficiary under a non-binding beneficiary nomination, or to a person’s estate, and there may be a discretion on the trustee of a superannuation fund regarding payment of the benefit following a person’s death.
In some circumstances, you may be able to execute a binding death benefit nomination so as to remove the discretion of the trustee of the superannuation fund regarding payment of the benefit following your death, so that the you can nominate a beneficiary to receive the benefit, rather than leaving the discretion to the trustee of the fund.
Each individual superannuation fund is governed by the terms of their trust deed and the superannuation legislation.
FAMILY TRUSTS & CORPORATE STRUCTURE
When preparing a Will, it is important to take into consideration how an entity, such as a trust or company, that a Will maker has an interest in will be affected upon the Will maker’s death.
In the case of a family/discretionary trust, where a person holds a position of control in the trust, such as trustee, appointor and or guardian, consideration may need to be given as to who will take over such role on the death of the person.
Consideration may need to be given in relation to such entities and the control thereof when obtaining advice with respect to estate planning.