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Estate planning is the process of deciding on how you want your personal, financial, family and business affairs dealt with when you are unable to do so on account of your death, ill health or incapacity.
It takes into account a range of legal and financial considerations and goes beyond putting your Will and Powers of Attorney in place.
You need to thoroughly understand the benefits of having an effective Estate Plan in place even when there is no reason to expect it will need activation for many years.
Some more important reasons for seeking advice and implementing an estate plan are:
A Will and Enduring Powers of Attorney are probably the most important documents most of us will ever sign.
These legal documents provide maximum security and peace of mind for you and your family in the event of death and physical or mental incapacity.
Similarly, a poorly worded Will or the absence of Powers of Attorney can have deep impact on the dynamics of the family structure causing dispute and anxiety to the very people you want to gain a benefit from you.
A further important consideration is the care of infant children or other family members with a disability who rely on parents or siblings for their daily needs. It is vital that a protective strategy is in place in the event of the carer not being able to fulfill their responsibilities.
The Laws regarding Wills and Enduring Powers of Attorney are very strict and non compliance or breach of these rules can have significant adverse outcomes.
E.g. a Will could be deemed invalid and require Court intervention. Even if a Will is valid, there are other circumstances where the Court may be asked to rule on such as Testamentary capacity or dealing with a claim/dispute against the estate by a party who feels they have been inadequately provided for by the testator.
The contesting of a Will is a stressful time for all parties involved and usually occurs when feelings of grief are most raw, making the situation even more distressing. Obtaining professional advice is crucial to ensuring these situations are handled appropriately and successful outcomes are achieved.
The appointed Executor/Trustee of an estate is legally responsible for all aspects of the estate where such duties can be very demanding and require an understanding of law, taxation, accounting and other business practices.
An Executor can be held personally liable for failing to fulfill these duties competently and conscientiously.
Duties of an Executor/Trustee include the distribution of an estate including communicating with the parties involved, Court applications for a Grant of Representation, Probate and Letters of Administration, handling any legal challenges to the Will and continuing with the involvement of a Testamentary Trust when required.
The growing emphasis on wealth distribution has led people to give greater consideration to establishing a Testamentary Trust when making a Will which comes into effect on the death of the Testator.
A more common need for a Trust is created by a Testator within their Will or resulting from Intestacy (no Will in place). It usually occurs where the beneficiary is a minor and the benefit/assets are maintained in Trust under the terms of the Will until the beneficiary attains age 18 or older as specified in the Will.
A Discretionary Testamentary Trust is more complex in nature and can be used to maximise taxation conditions and extend protection of assets under certain circumstances such as bankruptcy, marital dispute and major personal issues such as drug dependency, alcoholism, gambling and general financial mismanagement.
Many people in the community are not physically or mentally capable of managing their financial or personal affairs. They require professional assistance on a temporary or permanent basis.
The major concern for these people is that they may be exposed to financial exploitation or mismanagement even by family members and friends and therefore the legal appointment of an Administrator and or Guardian should be considered.
Such an appointment is made by VCAT, the Victorian Civil and Administrative Tribunal – Guardianship List which is an independent legal body and part of the Department of Justice.
VCAT can accept an application to appoint a Guardian or Administrator and can revoke Enduring Powers of Attorney as appropriate. VCAT will determine whether a person has capacity to reasonably manage their own affairs and make the final decision of appointment taking into account any nomination for the appointment by the person making the application.
An appointment is normally reviewed at least every three years to ensure the person under administration is being cared for appropriately and in terms of the appointment.