Do I Need an Estate Plan?

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An Estate Plan is not the type of thing most people think about very often.

As an adult student in my first-year of Law School, I felt far more prepared for what the future held than many of my fresh-faced counterparts. Our Property Law professor introduced us to the importance of estate planning by saying “if you don’t think you have anything of value, feel free to leave it all to me in your Will”.

He was a great lecturer well versed in property law, and he understood what most of his students didn’t. Besides a wardrobe full of clothes or an iPhone, we have many things of value we might otherwise consider worthless, and without an estate plan, we have no way of knowing for sure.

The moral of the story is that YES, everyone needs a sufficient and up-to-date Estate Plan no matter what stage of life we are at – and the sooner we get one, the better.

What is an Estate Plan?

In Australia, an Estate Plan broadly consists of three key documents:

1. Your Will – your Will should be a detailed list of instructions for how to divide up and distribute everything you own (referred to as your Estate) after your death. It’s important that your Will covers all your real, financial, material, and digital possessions and that it clearly instructs the executor how to distribute them and to who. Your Will can also include other instructions concerning guardianship of children, funeral arrangements, organ donation wishes, charitable bequests, and more.
2. Enduring Power of Attorney – this is a legal document granting another individual the authority to handle your personal and financial decision-making in the event of your death or mental incapacity. In the eyes of the law, Enduring Power of Attorney gives the person you nominate equal standing with yourself with respect to any decision regarding your life and finances.
3. Advance Health Directive – also referred to as a “Living Will”, an Advance Health Directive is a set of instructions specific to your future health care and allows you to make decisions regarding your health ahead of time. Like Enduring Power of Attorney, you nominate an individual to have authority to execute your wishes as outlined in the document and to make decisions on your behalf in the event you are unable to.

An Estate Plan may consist of extra components but in high-level terms, these three documents are essential in proper estate planning.

Why do I need an Estate Plan?

Much like my fellow first-year law students, most of us underestimate the true scope of our Estate by a long way, and without proper estate planning it may not end up where we want it to after we pass. There are many reasons, but there are three main reasons that apply to everyone:

Taking Care of our Loved Ones

Your death will be hard enough on your family already; you don’t want to leave them a financial and legal mess on top of it. You want to make sure spouses, children, and grandchildren are properly taken care of, and unfortunately, you can’t just vaguely trust that “the right thing” will be done. A clear, comprehensive, and explicit Will ensures there is no room for doubt or interpretation and that none of your loved ones suffer excessive financial or emotional stress.

You can protect minors with a guardianship agreement and financial trust arrangements to see them through to adulthood. By properly quantifying your whole estate, you can ensure there are no items left “up for grabs” by greedy third parties. And with some discussion and agreement beforehand, you can distribute heirlooms or items of sentimental value without any fighting or debate.

Besides a Will, there are other things you can do to take care of your loved ones as part of your estate planning before you die. Australian property law allows property assets (or “real” assets) being held in multiple names, for example by spouses or partners, in which case ownership automatically transfers to the living spouse on the death of the other. It is highly recommended to consider Death and Total and Permanent Disability (TPD) insurance as part of your estate planning. Above all, communicate with your loved ones thoroughly and honestly about your estate plan while you still can!

Avoiding Unnecessary Probate Costs

When someone passes away, even with a Will and Estate Plan in place, Probate is required before any of your instructions can be carried out.

Probate is the legal process whereby the Supreme Court validates your Will and gives authority to the Executor to commence distribution of your Estate. Once the process is complete, the Court issues a “Grant of Probate” – a legal document confirming the validity of the Will and authority of the Executor. Financial institutions holding the financial assets of the deceased will usually require a copy of the Grant of Probate before releasing any funds.

The Grant of Probate is a powerful document and the Supreme Court will not issue it lightly. If you don’t have a Will in place, have an unclear, incomplete, or poorly drafted Will, or even multiple differing Wills at the time of your death, the Probate application can become a long, drawn-out, and very expensive exercise. On top of the emotional and financial stress it can place on families, Probate may be tied up for years or, in extreme cases, not be issued at all.

With a comprehensive, clear, and detailed Will and Estate Plan in place, the Probate process goes a lot smoother with no unnecessary hold-ups or expensive legal hassles.

Protecting Assets

This predominantly applies to financial assets, but if your Will and Estate Plan is non-existent, unclear, or incomplete, the Court may make determinations about your asset distribution that are contrary to your intentions. Proper estate planning needs to include complex asset structures and clear instructions to go with them. If you have family or discretionary trusts, these need to be comprehensively described and covered in your estate plan. They may protect your family from unnecessary tax and lawsuit issues now, but they add complexity and could cause issues if not properly quantified and accounted for in your Will.

The most sure-fire way to do this properly is to engage a qualified Estate Planning Attorney and Financial Advisor – it is worth the investment for the future of your family beyond your death. Also – don’t forget to include your digital assets in your estate planning.

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Bonus: How Do I Apply for Probate in my state?

Queensland

To apply for probate in Queensland, you must advertise your intention to apply for probate to allow others to disagree with your right to obtain probate. You must also file several legal documents with the QLD Supreme Court.

New South Wales

In NSW, you will need to publish an online notice of your intention to apply for probate. After waiting a minimum of 14 days, you can file your probate application with the NSW Supreme Court.

Victoria

In Victoria, you will need to declare your intention to apply for probate. After at least 14 days, you will need to complete the required documents and submit them to the VIC Supreme Court probate office.

South Australia

To apply for a grant of probate in South Australia, you will need several documents:

• The original Will
• Death Certificate
• Details of assets and liabilities of the deceased person
• Credit card to pay the lodgement fee

You will then need to complete the application on the CourtSA website.

Northern Territory

In the Northern Territory, you will need to submit your application for probate to the NT Supreme Court.

Western Australia

The Supreme Court of WA has an online portal with which you can prepare your application. The application can take 3 to 6 weeks for processing. 

Australian Capital Territory

A checklist for all the things you will need for probate is available on the ACT Supreme Court website.

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