Getting Your Estate In Order – Some Practical Steps

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

In this world nothing can be said to be certain, except death and taxes – Benjamin Franklin, in a letter to Jean-Baptiste Leroy, 1789.

Overview

At some time or another we will all need somebody to look after our affairs following our death. Who this is, and how complex the task, will depend on a number of factors; however, there are a few things you can do today to help minimise your estate from:

• being diminished by legal fees;
• suffering onerous delays; and
• being the subject of discontent and dispute amongst family members.

As Benjamin Franklin stated, death is inevitable, and so it is the one thing that we can all plan for in advance and should not be something we only consider in our later years.

There are a few things a person can do during their lifetime to reduce the difficulties and expense involved in the administration of their deceased estate. A few of these are outlined for you below.

Make a Will

The first and most important thing is to have a will.

There are a number of reasons for having a well-drafted up-to-date will, including:

• to have certainty as to how your property is to be divided on your death and to whom it should go to;
• to appoint the executors of your choice;
• to appoint a guardian of your minor children (that is, those of your children who are under 18 years old at your death);
• to avoid having your estate divided according to the laws of intestacy; and
• to avoid the additional cost and inconvenience of obtaining Letters of Administration as opposed to a Grant of Probate.

This is discussed more fully a Why Make A Will.

Check Ownership of Assets

You may wish to consider the nature of your assets and their ownership.

For example, should you transfer some or all of your assets into joint names with another person or persons (see Glossary of Legal Words Used, under ‘joint tenancy’)?

Ordinarily, assets held in joint names with another person do not form part of, nor pass through, the estate. Rather, the legal title to the asset will automatically transfer to the surviving joint tenant by operation of the law. This can result in a considerable saving of time and expense should this be the desired outcome in any event.

Should you wish to change the nature of the ownership of assets during your lifetime, then this may have conveyance duty (previously called ‘stamp duty’) implications and so professional advice should be sought prior to actioning any changes.

Review Superannuation and Life Insurance Policies

You should obtain professional advice on the best way to prepare for the payment and investment of the proceeds of life insurance policies and superannuation.

Superannuation and how it relates to your estate is more fully discussed at Superannuation and Estates.

Have an Enduring Power of Attorney

It is sensible for anyone over the age of 18 years, and who has the requisite capacity to do so, to give an enduring power of attorney to a trusted person, such as a partner or child. An enduring power of attorney gives the attorney the power to make decisions on behalf of the person giving the power (called the ‘appointor’, ‘donor’ or ‘principal’) if the donor of the power loses the capacity to act or to make decisions for themselves.

See Enduring Powers of Attorney for more information.