Wills & Estate Planning

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Estate planning is one of the most important things you can do to protect your loved ones and ensure your wishes are carried out. However, many people put off this essential task, thinking they don’t need an estate plan or that it’s only for the wealthy. Unfortunately, the consequences of not having an estate plan in place can be significant, creating uncertainty and legal complications for your family.

Without a valid Will, the laws of intestacy come into play, which means the government decides how your assets will be distributed. This may not align with your personal wishes. In Queensland, if you die without a Will, your estate will be distributed based on a set formula determined by legislation. This could mean that your assets end up in the hands of family members you may not have intended to benefit.

For instance, if you have a blended family, the intestacy rules may not adequately provide for children from previous relationships. Your spouse could inherit a larger share, potentially leaving your children with less than you had hoped. Additionally, partners or friends who aren’t legally recognised, such as unmarried de facto partners or close friends, will not receive anything unless there is a legal Will outlining your intentions.

An Enduring Power of Attorney is a critical legal document that allows you to appoint someone you trust to manage your financial and personal affairs if you lose the capacity to do so yourself. Without this document, if you become incapacitated due to illness or injury, there will be no one with the legal authority to make decisions on your behalf.

In such cases, your family may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) to have a guardian or administrator appointed. This can be a lengthy and stressful process for your loved ones, and there is no guarantee that the person appointed will be someone you would have chosen. This legal battle can also create friction among family members as they dispute who should take on this role.

An Advance Health Directive (AHD) is a legal document that outlines your healthcare preferences if you are unable to communicate them yourself. Without an AHD, medical decisions may be made on your behalf by family members or healthcare providers, potentially going against your values or wishes.

In the absence of this directive, doctors will often consult with your next of kin. However, they may not know your preferences around treatments such as resuscitation, life support, or pain management. This can result in distress for your family, especially if they are unsure of what you would have wanted.

For families with significant assets or complex needs, including a Testamentary Trust in your Will can provide substantial benefits, such as tax advantages and asset protection. Without a Testamentary Trust, your beneficiaries may miss out on these advantages, particularly when it comes to managing inheritance for minors or protecting assets from creditors.

A Testamentary Trust also offers flexibility in distributing income among family members in a tax-effective way, which can help preserve the wealth of the estate for future generations.

Estate planning is not just about deciding who inherits your assets; it's about making sure your legacy is handled according to your wishes, with minimal stress for your loved ones. By having a comprehensive estate plan in place, including a Will, Enduring Power of Attorney, Advance Health Directive, and Testamentary Trusts, you can ensure that your affairs are in order, your loved ones are looked after, and your intentions are respected.

If you don’t have an estate plan, now is the time to take action. At Your Legacy Lawyer, we’re here to guide you through the process and ensure your estate is protected, no matter what the future holds.