Wills & Enduring Power of Attorney

What is a Will?

A Will sets out how you wish your estate to be distributed after you pass away. An estate is made up of your assets and liabilities. They include things like bank accounts, properties, cars, mortgages, loans and personal items.

When making a Will you are required to appoint an Executor and nominate your Beneficiaries.

An Executor is the person who will administer or run your estate. They ensure all your debts are paid, you funeral is organised and they call in your assets. Their job is to give the assets to your beneficiaries. An executor does not need to be a beneficiary but often they are.

Your Beneficiaries (you can have more than one) are the people who will receive your estate once you pass away.  In addition to family and friends, you can also nominate a Charity as a beneficiary.

A Will also allows you to appoint a Guardian for your children.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPOA) is a document that enables someone to appoint an attorney while they are alive. The job of the attorney is to make decisions for someone about financial, personal and health matters when they are alive.

The most common decisions made by attorneys are medical and health decisions. These can include what treatment someone will have, whether someone will be placed into a nursing home or assisted living and whether someone will be left on life support.

An attorney can also make decisions for financial matters such as paying bills and buying or selling property.

It is important you have an Enduring Power of Attorney to ensure someone can make decisions for you when you no longer have capacity to do so.

What is a Binding Death Benefit Nomination?

Superannuation is often a person’s largest asset, however, it does not actually form part of your estate.  As such, even if your Will says where the proceeds from your Super are to go, this direction is not binding.

The Trustee of your Superannuation company will decide where these proceeds are to be paid to by referring to a legal document known as a Binding Death Benefit Nomination (BDBN).

You can appoint one or several people to be the beneficiaries of your BDBN.

A simple call to your Super Fund to request the documents to complete this is essential to ensure that the funds held in Super are distributed in accordance with your wishes. You can either elect for the proceeds to be paid to individuals or alternatively, to your estate.

If you don’t have a BDBN, the company that manages your super has discretion regarding who receives your super.  These are not automatically made to a significant other or children.

The process of waiting for your super company to make a decision can also be lengthy and involves your loved ones having to complete extensive paperwork and quite often, produce evidence that they relied on you to pay for bills and living expenses.

When was the last time you updated your Will or EPOA?

Updating your will or EPOA is critical whenever your circumstances in life change – whether you are getting married, divorced, having children or your financial or living arrangements have changed.

If you have not recently updated your Will, your loved ones may not receive the Estate inheritance you wanted them to receive.

In the case of an EPOA, it may mean that there is no one appointed to make certain decisions in the event you lose the ability to do so – either temporarily or permanently.

Even though this might be the last thing on your mind during these times, it’s important you action this sooner rather than later.

If you’d like more information on writing or updating your Will or Enduring Power of Attorney, please call our family law team on (07) 3211 2233 or email familylaw@btlawyers.com.au

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