Estate planning and other end of life documents
advice memo re end of life documents – 27 July 2020
General advice memo re end of life documents – 27 July 2020
Usual instructions sought from client seeking a will
is your full and correct name? Have you always used this name? 2. What
is your address and occupation? 3. Previous
you have any previous wills?
A. Usual instructions sought from client seeking a will
1. Correct name - What is your full and correct name? Have you always used this name?
2. What is your address and occupation?
3. Previous wills -
Do you have any previous wills?
4. Details of family and other relationships
• adopted children: see Adoption Act 2000 (NSW) s 95;
• ex-nuptial children: see Status of Children Act 1996 (NSW) s 6; and
• surrogate children: see Surrogacy Act 2010 (NSW) s 13 and s 109A of the Succession Act. Stepchildren and foster children would not come within the description.
5. Particulars of assets - What are your assets and their approximate values? Are any of the assets mortgaged, or is anything owing on any of the assets?
• owned as a joint tenant;
• owned by a partnership;
• owned by a company;
• owned by a trust;
• superannuation and life insurance proceeds;
• life interests terminating on the testator’s death; and
• pensions and annuities.
• the effect of your intended dispositions; and
• the adequacy of dispositions at the time, having regard to possible family provision applications.
6. Executor and trustee - Whom do you wish to appoint as the executor and trustee?”
7. The gifts -
8. Payment of debts -
B. Other important related end of life type documents
1. Enduring Power of Attorney – these are for another person to make decisions for you about legal and financial matters after you lose competency;
2. Enduring Guardianship – these are for another person to make decisions for you about health and lifestyle decisions after you lose competency;
3. Advance Care Directive - which directs your medical carers while you are incapacitated in relation to medical treatments you do/do not want at the end stages of life;
4. Superannuation death benefit nomination form Given this asset – like the next item - may be one of the biggest assets, this nomination form is critical for ensuring your intentions are carried out after death. Importantly, superannuation is usually excluded from distribution in a will as it is governed by the rules of the super fund and the law regarding dependants. The Super fund may require you to update the person nominated every few years otherwise the money may go to a dependant on the discretion of the trustee of the super fund.
5. Joint ownership of real estate – Given the family home is often the most valuable asset owned by anyone, it is critical to understand the Rule of Survivorship:
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