“By failing to prepare, you are preparing to fail.” – Benjamin Franklin

I am often referred clients from other practitioners and professionals in complimentary fields.

Recently I received an email to the following effect:

“Hello Tony,

I referred a gentleman to you last August to have his estate planning updated.  Unfortunately, he had an accident whilst cycling over the weekend and has since passed away.  The family are now trying to confirm the current standings of his arrangements. 

I recall you advising me that you had been unable to make contact with him, however, if you subsequently connected, could you please let me know so I can pass on your details to the family for follow up.”

The gentleman referred to me did not make contact with me, nor did he return my calls. This factual situation resulted in his family not only grieving their loss, but they were now faced with the following sets of circumstances:

  1.   An outdated Will that did not reflect the deceased’s wishes; or
  2.   An intestate estate.

When someone dies without a Will (or one that is appropriately drafted), this can result in an estate being distributed according to an inflexible statutory formula; a process which does not take into consideration either the deceased’s wishes or the personal situation of the beneficiaries. This is known as an intestacy distribution.

Some of the disadvantages of dying Intestate (i.e. without a Will) include:

  1.  The potential for the statutory distribution resulting in the allocation of the estate’s assets in a manner which is insufficient for the needs of certain family members;
  2.  The potential for distributions contrary to the deceased’s intentions or distributions that overlook individuals who would otherwise be beneficiaries of a Will;
  3.  The forfeiture of any asset protection benefits that a properly drafted Will could potentially provide; and
  4.  The additional cost and effort involved in applying for a Grant of Letters of Administration and the coordinating of the distribution of the estate.

All of the foregoing can be avoided by having a properly drafted Will, which also has the added benefit of:

  1.   Distributions according to the will-maker’s intentions, which can include distributions to extended family, friends or charitable organizations, as opposed to immediate family members only;
  2.   Minimizes the expense and delay in the administration of the estate;
  3.   The possibility of including in the Will a Discretionary Testamentary Trust(s) which afford greater asset protection, tax effective distributions (especially to infant beneficiaries) and wealth preservation
    opportunities; and
  4.   Minimizing the potential of incurring unnecessary taxation and othr liabilities.

If you wish to create a Will or update the current details of your existing Will, please contact my office in relation to any estate planning advice.

 

TONY KELLY LAWYER AND ESTATE PLANNER

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Please call Tony Kelly on 0418 325 079 or by email tk@tonykellylawyer.com.au