Do you have a Will? Has it been updated recently? Have you adequately preserved your assets for your family?

As life progresses and your and your families priorities, needs and assets change, it is important to consider the impact of these circumstances on your Will and consider whether it continues to safeguard your assets and provide for your family’s future in the best possible way.

It is important to understand that a Will only deals with assets in a person’s individual name and is not effective in dealing with trust and company assets (except for disposing of personal loan accounts between the person and the company/trust). A Will can however deal with a person’s interest in a trust or company asset.

When making a Will it is important that your tax and asset protection structures, including company and trust structures, are properly examined and dealt with to ensure that your assets can legally be dealt with in accordance with your wishes.  It may be necessary to make minor changes to your asset structures to ensure that the intentions of your will can practically and legally be implemented upon your death.

Superannuation funds can only be distributed to a spouse, interdependent persons, children or the estate of a person. Consideration should be given to whether you should make a Binding Death Nomination, meaning a legally binding nomination as to who is to receive the proceeds of your Superannuation in the event of your death. There are varying taxation consequences upon the making of such nominations. You should obtain financial advice in order to ensure that the maximum amount is available to potential beneficiaries after taking into account any tax liabilities.

Potential beneficiaries may be in a position that if he or she receives a benefit under a Will, that benefit may be at risk. For example, if there is a beneficiary who has a matrimonial property dispute, potential liabilities or are subject to a potential bankruptcy, their interest in the deceased estate will be take into account. If any of these situations apply to you, a Testamentary Trust could be created in your Will to help preserve the estate assets and keep them safe from attack by outside parties.

Testamentary Trusts are valuable tools in estate planning and also for dealing with any taxation consequences arising from an estate.

Where there are potential beneficiaries who are under a disability, then it is possible to establish a Special Disability Trust which has taxation benefits and does not affect Social Security entitlements. Such trusts can be established during the life of a person or in a Will.

From a family law perspective, it is also important to understand that a Declaration of Separation or Divorce Order will not stop your former spouse from being a beneficiary to your Will if they were otherwise included in same during your relationship. We recommend taking steps to update your Will as part of the separation process to ensure that your assets are left in accordance with your wishes and take into account your new family circumstances.

Tisher Liner FC Law has considerable experience in the area of Wills and estate planning, including in a family law context.

Each person’s circumstances are different and there is no “one shoe fits all” solution when it comes to Wills and estate planning.

We recommend that you take a moment out of your busy life to set up your family’s future by creating a Will or updating your old Will in order to better prepare for the future and to ensure that your assets are dealt with the way you want them dealt with and to achieve the best outcome for your family.

Please do not hesitate to contact a member of our family law team or wills and estates team to discuss your asset protection and how we can best help you.