Does a current will exist?
- If so, is it located in a safe place?
- Does it need updating or should a codicil or new Will be made to cater for any changes required?
If a current will does not exist:
- Make a list of all assets and those assets able to be disposed of by Will.
- Find the acquisition date of assets and market value for CGT purposes.
- Choose executor(s) and substitute executor(s) who will be able to administer.
- Consider whether any specific possessions e.g. cars, antiques or items of jewellery are to be left to specific beneficiaries.
- Decide how the estate is to be distributed.
- Is there likely to be beneficiaries who need special consideration, such as children with disabilities and spendthrift children.
- List the debts and how they are to be repaid on death.
- Decide if any specific instructions are to be left regarding the funeral arrangements.
- Consider what powers and directions you wish to give to an executor e.g.. investment powers, powers to distribute income and capital.
- List all persons who may be legally entitled to claim a share of the estate e.g. previous spouses and children from previous marriages and consider how best to avoid possible challenges to the Will.
- Choose guardians for any infant children.
2. Enduring Powers of Attorney
Has the client signed an Enduring Power of Attorney appointing preferably two persons to act jointly and severally to be Attorney in the event of the Guarantor becoming mentally incapable through accident or illness?
3. Estate and Succession Planning Issues
- Does the Will-maker operate his own business via a company, family discretionary trust, unit trust, partnership or sole trader? If so:
Consider who will control the business on the death of the Will-maker and how control will be passed to that person or persons assuming control.
- Is the will-maker an appointor under any trust arrangement? Who will assume that function on the death of the Will-maker?
- Are there sufficient assets owned directly by the Will-maker and appropriate beneficiaries, e.g. children or grandchildren of the Will-maker who are minors, to warrant incorporating a testamentary trust in the Will and provide the beneficiaries with asset protection, pension planning, tax and other benefits?
- Is the Will-maker a member of a superannuation fund? If so:
How will the equity of the Will-maker in the business be realised? That is, how will any other parties involved in the business be able to purchase the share of the deceased partner, or how will the deceased’s estate or the family of the deceased be able to but out any other parties involved in the business?
- Does a Will need to be made or reviewer to make sure that the control of the business on the death of the Will-maker is transferred in accordance with the Will-maker wishes?
- Should a succession planning exercise be undertaken to ensure the control of the Will-maker business can be transferred in the manner he wishes and in the most tax effective and efficient manner.
4. Proceeds Trusts
Consider if estate proceeds trusts and superannuation proceeds trusts would be more appropriate to establish in the event of the death of the Will maker rather than incorporating a testamentary trust in the Will.
The above information is intended to provide a general guide only and neither represents nor is intended to be specific advice on any particular matter. We strongly suggest that no person should act specifically on the basis of information contained herein but should seek appropriate professional advice based upon their own personal circumstances. Only Financial Services Advice is provided by Peninsula Taxation and Business Centre as a Corporate Authorised Representative of Madison Financial Group Pty Ltd (ABN 36 002 459 001) AFSL# 246679.