At first, it may seem a complicated process but developing an estate plan is the only way to ensure assets are distributed appropriately among beneficiaries.
There are seven main ‘deadly sins’ of estate planning that can derail the efforts taken to ensure that wishes are fulfilled in the event of death or incapacity.
Hell hath no fury like men and women scorned.
Divorce and separation, not to mention broken families, make for a complicated estate. Although marriage revokes all previous wills, divorce does not always. Marriage breakdown and remarriage should be triggers to review arrangements.
It is increasingly common for wills to be challenged in court whether by an ex-partner or another family member. In a number of cases, these challenges are upheld. While it is impossible to prevent a challenge, the best way to make it unlikely to succeed is to obtain expert assistance in developing the estate plan.
While 'DIY' will kits and cheap estate planning services can seem quick and easy, the reality is they are extremely basic and often do not always cover every eventuality.
Those who look for the cheapest way to write a will do so at the risk of compromising on quality. What may save money now, could end up costing later.
Just because a document is in the format of a will, it doesn’t mean it covers everything required – especially if the person completing the DIY will form doesn’t understand how to structure financial affairs or sort out ownership of assets. Estate planning is about advice – the will is just the end product of that.
Simple mistakes can make a will meaningless. For instance, a recent case dealt with a young man who had drafted a new will but not yet signed it. As a result, his estranged partner was still the beneficiary of his entire estate, while his parents and current partner at the time he died received nothing.
For many, developing an estate plan is something to do another time. They may think they are too young or that they don’t have enough assets to justify making a will.
The fact is that anyone who has children, is a member of a superannuation fund or who owns their own home should have an estate plan. Choosing to do nothing is something that their families could end up regretting in the future.
One of the most valuable aspects of an estate plan is the capacity to establish a power of attorney, but it is easily overlooked or ignored.
It can be hard for people to accept that they might not have the mental capacity in the future to manage their affairs. With an ageing population, the number of people with issues such as dementia will only increase – statistics suggest that there will be around 400,000 people in Australia with dementia by 2020 and 900,000 by 2050.
Empowering someone with the ability to make appropriate decisions on your behalf, if required, is an important part of a comprehensive estate plan.
There have been a number of cases in recent years where children from extra-marital relationships have successfully made a claim on an estate. While it may not be an issue that most need to consider for themselves, there are still lessons to be learnt.
Court battles such as those over the estate of Richard Pratt or Michael Wright highlight the increasing role that courts are taking in awarding significant portions of estates to people who were originally not beneficiaries.
In the case of Mr Wright, a third daughter asked for $12 million from his estate of $800 million but the court decided to award her more than double that amount.
Keep in mind that it doesn’t need to be family members who can make – and win – a claim on an estate. There are examples of neighbours doing what most people would consider to be ‘neighbourly’ acts such as assisting with grocery shopping or simply visiting elderly neighbours being awarded a share in an estate.
It may seem like a cliché from an Agatha Christie novel, but it is a sad fact that reading out a will can bring out the worst in people.
Previously close-knit families end up in bitter dispute over the contents of a will. People should never assume that it couldn’t happen in their family.
It may be that the will-maker felt there were valid reasons for leaving more money to one child than to another – for example, they may have helped the other child set up a business. Unless this is explained clearly – preferably not just in the Estate Plan but before they die – it can cause significant resentment.
More a sin of omission, perhaps, than a deadly sin, but people shouldn't forget philanthropy when establishing an estate plan.
Many like the idea of leaving something to charity in their will as a bequest or even setting up a foundation to continue their philanthropic activities after their death. It’s something that is easy to forget. This is another area where getting expert advice can help ensure all their wishes are carried out after their death.
Anna Hacker, national manager of estate planning, Equity Trustees