An effective estate plan includes your (tax effective & legal) Will, as well as any other directions on how you want your assets distributed after your death.
It should also include documents that govern how you will be cared for, medically and financially, if you become unable to make your own decisions in the future.
Key documents might include your Will, Life Insurance Policy, Superannuation death nominations, Testamentary trust deeds, Enduring Power of Attorney, Enduring Power of Guardianship, Anticipatory Direction etc (the last three of which are covered elsewhere on our web site – Please see ‘Various Powers of Attorney’ for more information.)
As documented above, any jointly held assets, trust assets and superannuation however, are not necessarily dealt with by the terms of your Will. These are usually considered ’non-estate’ assets for estate planning purposes. There may be specific State and Territory legislation that classifies ‘non‑estate’ assets as ‘notional estate’ for the purposes of a Family Law challenge.
[Please note: The concept of ‘notional estate’ has been introduced in most jurisdictions, as more and more people hold their personal assets in trusts and super funds, sometimes in an attempt to get around Family Provision laws by moving assets outside their ‘actual estate’.]
Furthermore, if you have made a ‘binding nomination’ in your superannuation or life insurance policies, the beneficiaries named in those policies will override anyone mentioned in your Will. If you have a Testamentary trust, the trust continues and its assets will also be distributed according to the trust deed, no matter what is written in your Will.
It is therefore important to have a considered and comprehensive estate plan to ensure all assets are transferred according to your wishes in the most effective and efficient manner.
The essential part of estate planning is to identify your assets, how these are owned (in your own name, joint names or through another structure such as a trust, company or super fund) and to identify the priorities most important to you in your estate planning. On top of tangible assets such as houses and cars in the Will, probate lawyers have been stressing the importance of accommodating for intangible assets in the Will in order for families to reach complete closure. Digital assets are commonly defined as any content that is stored digitally or any online accounts that are owned by an individual. These assets are best managed by undergoing Digital Estate Planning – this is an additional stage to your normal estate planning. This step is to ensure any valuable assets locked up in the cloud, will be appropriately managed after your death.
An estate plan is not static and must be reviewed and updated with your ‘life’ changing circumstances over time.
We therefore suggest that if your ‘overall estate’ includes a complex mix of ‘estate’ assets, trust assets, life insurance and superannuation, that you seek both legal and financial advice from your solicitor, accountant and/or financial adviser, when formulating your comprehensive estate plan.