What to consider before your Estate Planning appointment?

Estate planning questions answered

One of the most important things you can do to protect your interests and secure your families future is to prepare your Estate Planning documents. 

The three most common Estate Planning documents are:

  1. Will;
  2. Power of Attorney; and
  3. Enduring Guardianship. 

A Will dictates how you would like you Estate to be distributed once you pass away, and who will be responsible for managing this distribution (your Executor). 

A Power of Attorney appoints someone to act on your behalf in relation to your legal and financial affairs, to assist in the carrying out of these functions whilst you still have mental capacity, or in the event you do lose the capacity to do so for yourself. 

An Enduring Guardianship appoints someone to act on your behalf in relation to your medical and lifestyle decisions, in the event you lose the capacity to do so for yourself. 

Before attending your Estate Planning appointment, we recommend you consider the following:

Who will I appoint as my Executor, and as my substitute Executor?

Your executor is the person who is responsible for making funeral arrangements, and for distributing your Estate in accordance with your Will.  It is a very important role, and it is important that you choose someone who you trust. 

It is possible to appoint more than one Executor, with both Executors being jointly responsible for administering the Estate. 

You should also consider whether you would like to appoint a substitute Executor, in the event your first choice is unable or unwilling to act, for example, if they pass away before you do. 

Similarly, if you are completing your Power of Attorney and Enduring Guardianship documents, you should consider who you will appoint as your Attorney and Guardian respectively. 

Who will I appoint as the guardian of my minor child/ren?

In the event you have children under the age of 18, you are able to nominate who you wish to be the guardian of those children in the event that you passed away. 

It is important to note that this clause is a wish, and is not binding.

Do I have any special items that I want to gift to someone?

You should also consider whether you would like to give someone a specific gift from your Estate.  For example, if you have a special piece of jewellery you would like to be given to a specific person.  This may also include gifts to a charity. 

Who do I want to give my Estate to?

Before attending your Estate Planning important, it is very important to have considered who you would like to give your Estate to. 

You may wish to give your Estate to one person, to multiple people in equal shares or specific percentage shares. 

When determining who you would like to gift your Estate to under your Will, you should keep in mind that the following people are eligible people to make a claim on your Estate in the event that you do not provide for them, pursuant to section 57 of the Succession Act 2006:

  • Spouse or de facto partner at the time of death;
  • Former spouse;
  • Children (including adopted children);
  • A person who, at any particular time, was wholly or partly dependant on the deceased AND who is a grandchild of the deceased, OR was a member of the deceased’s household; and
  • A person who was living in a close personal relationship with the deceased at the time of death. 

You should also consider who you would like your Estate to go to in default, i.e. if the first person you choose passes away before you do.  For example, it is common that a Will will bequeath the Estate in the following order:

  1. To a person’s spouse; then
  2. In the event that the spouse has passed away before the testator (person making the Will), then the Estate will pass to the testator’s child (or children in equal shares); then
  3. If the testator’s child has passed away, it would then fall to their grandchild.
Do I have a specific wish for the disposal of my body?

We are able to include a direction to your Executor as to how you would like your body to be disposed of once you pass away, for example, whether you wish to be buried or cremated. 

It is not necessary to include this wish, however, it may be helpful to inform your Executor of your wishes, if you have one. 

If you have any difficulties in deciding any of the above questions, your solicitor is able to discuss this during your appointment, and assist you in preparing Estate Planning documents which best reflect your wishes. 

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