Dying without a Will – Even the most rich and famous have done it!

Posted by Luisa-Maria Maroun on 02 February 2016
Dying without a Will – Even the most rich and famous have done it!

Robert Holmes á Court - one of Australia's most respected and feared businessmen who with intellect, daring and hard work built a $2 billion empire in the 1980s – died without leaving  a valid Will.  Rumour has it that he carried a “draft” around in his briefcase for years but never actually got around to signing this most important legal document.

When he suddenly died at the age of 53, it took nearly 20 years to finalise the distribution of his estate. This put much strain on family relations and resulted in thousands of dollars in legal fees.

Why would a man, who was educated and business savvy and surrounded by lawyers on a daily basis, overlook completing his Will? Well, he is not alone - it is estimated that about half of all Australians die without a valid Will.

Is this because very few of us like to think or talk about death?  It is a difficult conversation to have with our loved ones.  Do we also fool ourselves into thinking “I have plenty of time left”.  Are we just too busy or do we not have enough knowledge about this important piece of our end of life planning?

Delaying your estate planning can have devastating consequences.  A mother of three young children recently lost her husband after he had been terminally ill for some time.  He never drafted a Will, thinking it would be his admission of the illness “beating” him.  However, after his death, rather than being able to grieve and support her children at their time of need, she realised that she lacked the legal authority to deal with his assets and spent a significant amount of time negotiating with government departments and financial institutions.  Her husband simply failed to understand the deep impact and additional trauma that the family would encounter in the absence of him having a Will in place.

Estate planning does not just include the existence of a Will.  There are many other documents that can be utilised during your lifetime that are just as important as a Will.  Here are the five documents that entail a good estate plan:

  1. A Will - This appoints an “executor” to deal with your assets and distribute them according to your wishes. Importantly, your Will may also stipulate the nomination of someone (“guardian”) to care for your “minor” children who fall under the age of 18.
  2. Testamentary Trust - While this is not necessary or suitable for everyone, this form of estate planning document establishes a trust upon your death and can provide powerful protection and tax advantages for your beneficiaries.
  3. Superannuation Binding Death Benefit Nomination - Superannuation, like company and trust assets, are not covered by your Will. You need to instruct your superannuation trustee specifically as to the distribution of your entitlements and death benefits, via the completion of a death benefit nomination form.  This can be binding for your lifetime if it is a non-lapsing nomination however, should it be a lapsing nomination, it will need to be renewed at the expiration of the timeframe as per the policies of your superannuation fund.
  4. Enduring Power of Attorney - If you are still alive but have lost the ability to make decisions for yourself, a Power of Attorney gives power to the person you appoint as your “attorney(s)” to make financial decisions on your behalf.
  5. Enduring Power of Guardianship - If you are still alive but have lost the ability to make decisions for yourself and you can no longer manage your affairs, an Appointment of Enduring Guardian gives power to the person you appoint as your “guardian(s)” to make medical and lifestyle decisions on your behalf.

Don’t be a “Robert Holmes á Court” and assume estate planning is something that can be put off until tomorrow. It's best to think about your Will and other estate planning documents as a gift to the people most precious to you.  The gift is your ability to preserve relationships between family and friends and avoid the conflict and cost caused by uncertainty and incomplete estate planning.

Getting your estate planning in order does not need to be hard - our specialist estate planning solicitors are here to help.

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