Estate Planning

What happens to your assets if you are unable to determine how they will be distributed or looked after? Who will they go to and what will be done with them? Estate planning ensures that your assets pass to your intended beneficiaries. The estate planning process is complex and often involves:

• The creation of a will: if a will is not found for someone who has recently deceased after a satisfactory search, they will be declared to have died intestate. The rules of intestacy then apply.
• The appointment of an executor of the will: if an executor was not appointed, a family member or close friend will make enquiries about the formal administration of the estate
• Establishing trusts
• Power of attorney

Estate planning is important as it can assist you in minimizing your estate’s tax liabilities (e.g. superannuation, capital gains tax savings) and protects your beneficiaries’ inheritance in the event of bankruptcy or divorce. Estate planning can also minimize or eliminate death benefits tax.

If there is an estate, formal administration of the estate is usually required, especially if the deceased held real estate in their own name or as a tenant-in-common with another person.

If there is both a will and an executor, the executor applying for a grant of probate from the Supreme Court, which will allow the executor to begin administering the estate. If there is no executor, an application must be made to the Supreme Court, who will appoint an administrator for the estate.

The application requires the following documents as a minimum:

• a summons that is signed by the executor and lawyer
• affidavit of the executor
• the original will

A death certificate can be obtained from the Registry of Births, Deaths and Marriages for $51. The application process for a grant of probate also involves a filing fee ranging anywhere between $0-$5,125 (correct at July 2013) depending on how much the estate is worth. The probate is granted in common form if there are no disputes over the will.

In order to ensure that everything is carried out correctly and that your assets are passed to the intended beneficiaries only, it is important that you consult a legal professional when drafting wills, power of attorney, binding death benefit nominations, and when establishing trusts.

If you would like more information or advice regarding Estate Planning or if you have another Wills & Estate Planning matter, please complete and submit the express enquiry form on the top right hand side of this page or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange an appointment.