A Will is an important document which leaves certain instructions to be effective upon your death. These instructions should include the appointment of an Executor, who is the person who is in charge of carrying out the instructions, and the division of all assets once all debts and expenses are paid for.
Other instructions can also be added. Wills often contain the appointment of a Testamentary Guardian, who is a person who is charged with the responsibility of caring for minor children. Funeral directions can also be included, including whether a burial or cremation is preferred, or specific instructions regarding the location of a grave or the scattering of ashes.
Wills can also establish ongoing trusts which can be utilised for many years. The most common trust structure contained in a Will is the instruction for the Executor to hold the beneficiaries’ entitlements until they attain a certain age, usually 18 or 21 years. Less common trust structures include Special Disability Trusts which benefit persons living with a disability in a way which does not affect their pension, Protective Trusts for vulnerable beneficiaries, or Testamentary Trusts for asset protection or tax minimisation.
However, Wills do have some limitations. A Will cannot deal with an asset which is held jointly with another person as these joint assets will automatically pass to the surviving joint proprietor. Superannuation will generally pass to the person nominated with the Superannuation Fund. Life Insurance will generally be paid to the person named on the policy. Also, trust assets cannot be dealt with by Will because these assets are owned by the trust, not the Will maker.
Enduring Powers of Attorney are equally important documents which can appoint a trusted family member or friend as an attorney. An attorney is someone who can make decisions about someone else’s:
– Financial matters
– Personal matters; and
– Medical treatment decisions.
Powers of Attorney are particularly useful for the unfortunate situation where a person loses decision making capacity. The attorney would then utilise their authority and act in the person’s best interests.
Enduring Powers of Attorney operate during a person’s lifetime rather than a Will which operates afterwards. Both documents are equally important and should be completed well in advance of the time for when they are needed. Just as a Will cannot be done after death, a Power of Attorney cannot be given if a person does not have decision making capacity.
With multiple accredited specialists in Wills and Estates and offices in Geelong, Corio, Ocean Grove and Winchelsea, our team at Wightons Lawyers are uniquely stationed to provide the right advice regardless of the complexities.
This article is general information only and is not legal advice or a substitution for such advice. Always seek professional advice suited to your own circumstances.