None of us like to think about what will happen when we pass away, but by planning ahead you can help make sure that your wishes are carried out.
Your estate is made up of what you own and could include your home, investments, savings and cheque accounts, car and furniture. Basically, any assets you want to pass on to people, charities or other organisations could potentially be included as part of your estate. Superannuation and insurance proceeds are not automatically part of your estate, so these assets require extra planning.
Here are five steps:
1. Make a will and keep it up to date
2. Set up a Binding Death Benefit nomination or Non-lapsing Death Benefit nomination for your super
3. Nominate a beneficiary for your life insurance outside super
4. Understand the tax consequences of how your assets are distributed
5. Appoint an enduring Power of Attorney (PoA)
1. Make a will and keep it up to date
If you don’t have a will your assets will be distributed according to the intestacy laws of your state. This means your assets may not go to who you want them to.
An up-to-date will can give you the assurance that your loved ones will be provided for as you intend.
Your solicitor, a private trustee or the Public Trustee for your state or territory can help you choose an executor and draft a legal will that sets out:
- Who will receive your assets after you die – e.g. property, possessions, bank account balances, shares and managed funds
- Who will look after your children
- Your wishes regarding your funeral and burial
While it’s possible for a legal will to be contested, setting out your wishes clearly and with the help of a legal professional can make contesting difficult.
Keep in mind that a will won’t cover assets that you own with someone else as a joint tenant. The surviving tenant will automatically get ownership of your share.
You can amend your will if your circumstances change, such as when you marry, divorce or welcome the arrival of children or grandchildren. Small changes can be made using a legal document called a codicil. If you want to make substantial changes, it’s a good idea to create a new will.
2. Superannuation considerations
Superannuation is not automatically paid to your estate in the event of your death – where it is paid will depend on your fund’s rules and any death benefit nominations you’ve made.
A Binding Death Benefit nomination or Non-lapsing Death Benefit nomination is a written nomination made to your super fund to make sure that your death benefit – which includes the total super balance and any life insurance held in the fund – is paid out according to your wishes.
Without this type of nomination, your super fund may be able to use its discretion to choose which of your eligible beneficiaries receive your death benefit, or a default procedure may apply (e.g. it may automatically be paid to your estate).
In most cases a Binding Death Benefit nomination only remains valid for three years, so it’s important to regularly renew it. A Non-lapsing Death Benefit nomination will - depending on your fund’s rules - generally remain in place unless you cancel it or replace it with a new nomination.
It is important to periodically review any Binding or Non-lapsing Death Benefit nominations you have to ensure they remain valid and in line with your wishes.
3. Life insurance outside super
Life insurance policies outside super generally let you nominate who should receive the benefit if the life insured passes away. There could be multiple parties involved - typically the life insured, the policy owner, the person paying the policy premiums and the beneficiary. It’s common for these parties to be one individual, but not essential.
If you are the policy owner and don’t nominate a beneficiary, and the benefit is $50,000 or more, it will be paid to your estate. In this case there is a legal requirement to provide Probate or Letters of Administration (LOA) before the benefit can be paid. These are legal documents proving that the executor is authorised to manage your affairs. If the benefit is less than $50,000 it may be paid directly to certain individuals1 including a spouse or child where the policy owner does not nominate a beneficiary.
4. Manage tax consequences
Your beneficiaries may end up with a hefty tax bill if you don’t plan how they will receive your assets. This is because the way you distribute your assets could have tax implications, including Capital Gains Tax (CGT).
Fortunately, there are ways you may be able to manage tax impacts. For instance:
- Insurance policy proceeds from a super fund are tax-free if they’re paid to dependants (see the ATO’s definition - Who is a dependant under taxation law).
- A CGT liability can be deferred if a beneficiary of your estate is given an asset rather than the proceeds from the sale of that asset
- Incorporating testamentary trusts into your will can help manage tax. This is something an estate planning lawyer can help you with and you can find out more about testamentary trusts at ASIC’s MoneySmart website.
5. Power of Attorney (PoA)
There are a few different types of PoAs, including specific, limited and general, that allow a person you nominate to carry out particular tasks on your behalf. However, an enduring PoA will let that person legally act on your behalf up until you pass away, even if you become incapable of managing your own affairs.
You can also choose to appoint an enduring Power of Guardianship that allows a person to make decisions about your health care, lifestyle and where you live.
It’s important to choose someone you trust and seek independent legal advice to make sure you understand the risks involved in giving someone else control over your affairs.
A financial planner can work with you and your legal adviser to get an estate plan in place for you and your family.
1 Direct payment of a benefit under $50,000 may be made to:
- the spouse, de facto partner, parent, child, brother, sister, niece or nephew of the deceased person; or
- a person who satisfies the company that he or she is entitled to the property of the deceased person.