Wills
Proper estate planning is vital if you want to make sure that your partner and children are provided for during your lifetime and after.
- Why do you need a will – Cathy Bastow – NashClavey
A valid will is the only way to ensure your assets are disposed of according to your wishes.
If you do not have a will, your assets will be dealt with by legal rules-not in accordance with your wishes. This may result in an outcome which you do not want.
The only way to avoid this is to have a valid will prepared by a solicitor.
Your will should be reviewed regularly and changed along with your circumstances.
Did you know….?
- Not all assets can be dealt with in your will:
- Assets owned by you and your partner as joint tenants will automatically go to the surviving party and any instructions in a will, will have no effect at all.
- Superannuation cannot be disposed in a will. The Trustees of the Superannuation Fund have the discretion to distribute the funds when you die.
- Even if you have a valid will, the Supreme Court of Western Australia can determine the distribution of your property after your death. It can do so if you have not made adequate provision for your dependents.
- If you marry or become divorced after you have made a will, your marriage or divorce will have the effect of revoking your will unless a special clause has been inserted in it.
- Not all appointments of guardians are effective and you should seek legal advice before making such appointment because the Family Court has the overriding power to determine who will care for the children.
Testamentary Trusts
A Testamentary Trust is a trust that is set up under a will and is activated upon your death. Your assets dealt with in the will then automatically fall into the trust.
There are a number of taxation, social security, and other reasons for setting up a Testamentary Trust and we recommend that you seek financial advice on these aspects.
Some of the advantages of a trust are as follows:
- The Testamentary Trust enables assets to be managed by one person for the benefit of another. Spend-thrifty children will have all the security of the trust’s assets without the responsibility for their management, in much the same way as you manage your family finances for the benefit of your children during your lifetime.
- Trust assets are exempt from social security assets test for age and disability support pensions.
- The trust can protect your children’s inheritance from divorce and claims for property settlement.
A Testamentary Trust may be structured to meet the needs of a person with a severe disability.
Enduring Power of Attorney (EPA)
Why do an Enduring Power of Attorney?
So here’s something to think about…
Do you want to inflict a great deal of pain on your kids or do you want to save them from the bureaucratic hell of looking after your affairs when you can 
no longer do this yourself?
When a loved one has had to go through the process of preparing mandatory accounts for someone who did not complete an enduring power of attorney, you will see why you need to consider making out one of these important documents.
So, what exactly is the problem if you haven’t set one up?
Well, firstly, your loved ones will need to make an application to the State Administration Tribunal (SAT) to make an application for administration of your estate. That may involve a lawyer ($$$!!!) and will require medical reports. And the process will take a couple of months to complete. At the end, they have their day before the tribunal (day off work!) to explain why they need to manage your financial affairs.
Assuming there are no completing claims from other members of the family (more $$$$!!), they will get their order. Then, they need to lodge the order with every agency you can imagine, from Centrelink, the bank, care providers, Telstra and Landgate, to name a few.
After that, they need to lodge a document with the Public Trustee, showing what assets are being managed and their value, together with your projected cashflow.
But it gets even better. Your loved ones will need to keep a record of every cent spent – on what and, why.
So then, to celebrate their good work, on every anniversary of their appointment, they lodge a statutory declaration with detailed accounts, including copies of all bank statement and receipts for expenses in excess of $400.00. Further, the expenses have to be classified into categories, such as personal care, medical expenses, accommodation etc. Better things to do??
These are such powerful documents that if proper legal advice is not sought, either could be used as a tool of elder abuse. Your lawyer will advise you on things such as the difference between immediate and deferred powers of attorney. They will explain the advantages and disadvantages of appointing your attorneys jointly or jointly and severally. The issue of registration of enduring powers of attorney also needs to be discussed at some length.
To sum up…
The enduring power of attorney delivers the same range of financial powers to your chosen attorneys as any SAT order but without the reporting headaches.
At the end of the day, the enduring power of attorney is something that you should put in place for the sake of your loved ones, who will be inconvenienced if you don’t have one.
Enduring Powers of Guardianship (EPG)
Why should I do an Enduring Power of Guardianship?
The enduring power of guardianship gives family members or other loved ones power to make medical and lifestyle decisions for you when you can no longer make them for yourself.
If no-one has been given the full range of medical decision-making powers for you, your medical team will continue to treat you and keep you alive as 
long as possible. If that is not what you want – after all, a good life deserves a good death – then you need some brave soul to speak up for you and let your medical team know “when’s enough, enough?”
To sum up…
The enduring power of guardianship gives your chosen guardian power to make all medical and lifestyle decisions.
The enduring power of guardianship is something you need to put in place for yourself – or you risk being kept alive when you no longer have any quality of life.
Advance Health Directive
Sometimes referred to as a “living will”, this document is a directive to your doctors to take certain steps or not take those steps regarding your medical treatment if you lack the legal capacity to direct them yourself. This would occur if for example, you are not conscious or are in the advance stages of dementia.
You may need to see a lawyer if you have been named as the executor of a Will.
When someone dies, having made a valid Will, the named executor will need to “step into the shoes” of the deceased person in order to administer their estate and distribute the assets of the estate to the beneficiaries.
The first question your lawyer should go through with you, as executor, is whether you need to make an application to the Supreme Court of Western Australia for probate. In some situations, you will need to seek a grant of probate but in many cases this is not necessary.
Whether or not a grant of probate is necessary, you should ensure that you understand your duties as executor before commencing work. When money is at stake, you may find you are being criticised, even when your intentions may have been altogether good.