Estate Planning

Estate Planning is more than creating a simple will. It involves the process of arranging for the distribution of all of the assets a person owns or controls.

If you are seeking solid, Professional advice with any kind of Legal matter, Diamond Conway's Legal team of Accredited Lawyers can help.

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Estate Planning

Estate Planning is about more than having a Will. It involves the process of arranging for the distribution of all the assets a person owns, controls or has an interest in. Wills only deal with the assets owned by a person in their own name. However, many people own assets through different structures and entities. If this is the case then other documents may need to be checked to make sure the assets held in those structures/entities pass to the intended beneficiary.

A good estate plan aims to make sure that, after a client's death:

  • That transfer of ownership and/or control of those assets pass to the appropriate person or entity;
  • That ownership and/or control passes at the right time; and
  • There are sufficient assets available to meet the needs of the people the client intends to benefit, after their death.

In conjunction with a good estate plan, there may be other considerations including:

  • Planning for future life, including Powers of Attorney and Appointments of Enduring Guardian.
  • Advising on and setting up special-purpose trusts.

Assets Outside A Person's Will

Assets which may or would not form part of a person's estate and the considerations that arise for passing ownership or control of these assets include:

  • Assets owned as joint tenants (eg. often the family home) – these assets pass to the survivor, unless the joint tenancy is severed.
  • Life insurance proceeds (where someone else is the policy owner or nominated beneficiary).
  • Assets owned within a family discretionary trust –
    • Who is in control of the trust? This means not only the trustee, but also the “Appointor” (i.e. the person who has the power to remove and replace the trustee). The trust deed may need to be checked to work out who is in control and how that person passes on control.
    • If a company is a trustee of the family trust, we may also need to check the shareholding and constitution of the company.
  • Company assets - the shareholdings and constitution of the company would need to be reviewed to check the transmission of the shares on death and which shares have the voting rights in the company.
  • Superannuation death benefits (that are paid directly to a dependant) – death benefits payable from super may simply be discretionary in the hands of the trustee, depending on whether any nomination is binding or non binding. If a person wants super death benefits to pass to a particular dependant, the deed may need to be checked to see whether a binding death benefit nomination can be completed.
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Planning for Future Life

It is important to plan not only for death, but for the possibility that you may one day lose the mental capacity to manage your own financial affairs or to make decisions about your living arrangements, health and welfare.

It is therefore important to consider executing an Enduring Power of Attorney and an Appointment of Enduring Guardian. You might also like to consider executing an Advance Care Directive setting out your decisions in relation to your end of life case.

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Sufficient Assets

An important component of an estate plan is to ensure there will be at least sufficient assets to meet the client's estate planning objectives.

This involves a careful analysis of the funding needs and available income and assets to meet those needs by another professional, such as a financial planner.

Where there is a clear estate funding shortfall, a financial planner may recommend additional life insurance (as a short term measure), investment strategies (as a medium to long term measure) or a combination of these approaches. We can work closely with your financial planner to ensure your estate planning objectives are met, to the extent possible.

Some clients (especially older clients) will have accumulated sufficient to meet their estate planning objectives.

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Timing

Timing can be critical to the estate planning process for a number of reasons.

 It is important to establish:

  • The age that the younger beneficiaries should receive their inheritance (eg. at 18, 21 or 25 years of age);
  • When the assets should be sold;
  • Who should sell them (ie. the executor or the beneficiary);
  • When debts must be repaid (eg. an unexpected call on a business loan could result in the business failing).
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