On this episode, Ben and Heather discuss Wills and estate planning, bringing our attention to the many things that can go wrong if you fail to keep your Will and estate plan up to date with your life circumstances, particularly following a family breakdown. They discuss the following questions and scenarios:
1/ What happens if you die without a Will?
2/ What happens if you have children from your first marriage, remarry and don’t change your Will?
3/ What happens if you separate from your partner, but don’t change your Will?
4/ What happens if you divorce your partner, but don’t change your Will?
5/ What if you have children, but don’t change your Will to include them as beneficiaries?
6/ What if you have children and don’t specify guardianship?
7/ When you change your Will can you add notes to an existing Will or do you need to start again?
8/ What assets should (and should not) be included in your Will?
9/ What happens if the estate has debts?
10/ What are the responsibilities of an executor and what should you look for when choosing your executor?
11/ What happens if you have a serious accident or illness that leaves you unable to manage your affairs?
12/ Do you need a lawyer for estate planning or can you DIY?
AppleSpotifyAmazonPocketcastiHeartRadioGoogle
Benjamin Bryant: Welcome to episode 48. I’m Benjamin Bryant from Bryant McKinnon Lawyers and I’m here at the recording studio again with my partner and family law aficionado, Heather McKinnon. Welcome back, Heather.
Heather McKinnon: Good to be back, Ben.
Benjamin Bryant: Today we are going to be talking about something that everyone likes to avoid or put off: Wills and estate planning. Honestly, I think the majority of people know that writing a Will and planning for what happens if they die is important. But equally, the majority of people would rather not have to think about it and seem to have to come up with a million excuses as to why they can deal with it later. Is that your experience, too?
Heather McKinnon: Absolutely. Let’s face it. Who wants to contemplate their own death?
Benjamin Bryant: Indeed. But you and I have been involved in so many ugly situations caused by someone not bothering to do their estate planning. So today we’re going to do an entire episode on all things that can, and do, go wrong when people fail to write or update a Will or effectively manage their estate planning. Hopefully, some of these horror stories are going to resonate with our listeners and people will stop procrastinating and get on with estate planning for the sake of their families and the people that they love. Just before we jump into those horror stories, I want to remind our listeners, like I do every month, to share this show with friends and family starting down the path of separation or divorce. And in the case of today’s show on estate planning, please share the show with anyone and everyone, because estate planning is important for us all. Now let’s get on with our discussion about Wills and estate planning. Have you got your horror stories ready, Heather?
Heather McKinnon: Oh yeah, I got hundreds of them.
Benjamin Bryant: I don’t know if we have time for that, but let’s get started. Procrastination is probably the biggest obstacle to good estate planning. Too often people think that they’ll get to it later or they’re too young to worry about it now. Heather, what happens when you die without a Will, and how will this affect your loved ones left behind?
Heather McKinnon: Well, Ben, I think one of the privileges of working in a regional area for 40 years is that you actually see the life cycle a lot more than you would in a big centre or a city. And so, in a community like the one I work in, I’ve seen many, many people’s lives cut short. People have died in their 20s, 30s, 40s, 50s, 60s. Certainly people coming to make a Will in the main are people in their 60s, and sometimes that might be too late. So why you need to make a Will early on in your adult life is that nowadays we have financial assets from a very early age, particularly superannuation, which in Australia we all pay in the moment we start work. And it’s really something that you need to update every decade or so or when there’s a major change. If you don’t have a valid Will at the time of your death, it can put additional stresses on those you leave behind. Even if the law provides that, say, your spouse will get your estate or it will be shared with your adult children if you don’t have a Will. The problem is to get to the end result, you put your beneficiaries through a much more complex process. Having a Will, having it regularly updated means that you’re really removing that stress.
Benjamin Bryant: The best place to find out why you need a Will is to look at the place which shows what happens if you don’t have a Will. And for our listeners, that is Chapter 4 of the Intestacy section of the Succession Act 2006 New South Wales. Normally on our podcast programme we’re talking about the Family Law Act, which of course is federal jurisdiction. So that’s for all of our listeners in this great country of Oz. But today we’re talking about something that’s state specific. So, we’re talking about the New South Wales legislation, the Succession Act 2006. You want to find out what happens to your stuff if you die without a Will? Check out Chapter 4 of the Succession Act.
Benjamin Bryant: Heather, one of the most common missteps in estate planning is failing to update your Will when your life circumstances change. Let’s look at what might happen if you die in some of these circumstances. Let’s say you have children from your first marriage and you remarry a new partner, but you don’t change your Will.
Heather McKinnon: Yeah, this is quite a common one in those tragedies like the Hunter Valley where you’ve got, people dying midlife leaving little ones. It happens more often than you think. So, the problem with this question is that if the Will that is in existence was made during your first marriage and it left everything to your spouse and then your children in equal shares, it leaves your new spouse with the awful prospect of having to challenge that Will, if that’s the only Will, and apply to the court for a remedy. The problem is that if the estate is modest, for example, a house and a little bit of superannuation, it may be that your new spouse will get the majority of the assets and your children will get very little. That’s really difficult if the second relationship is very short. So they’re really indelicate issues to talk about, but they’re things that you’ve got to focus on. Our relationship trajectory through life, according to the sociologists now, is you’ll probably have on average three primary relationships and children from two of them. And so the old: do a Will when you’re 18 and you’re getting married, isn’t going to see you through to your deathbed. You’ve got to focus on it. And it’s a job you’ve got to do regularly.
Benjamin Bryant: And Heather, you just gave the example of a short relationship if the second relationship was short. But of course, sometimes the second relationship can be long and you’ve developed, really strong and meaningful relationships with the stepchildren. So it’s really important that, if you want to include those children, how do you define what your children are or who the intended children are, in terms of how you want your estate to be divided in the event of your death. So it’s really important that you keep it up to date with your current circumstances.
Benjamin Bryant: Heather, what if you separate from your partner, but don’t change your Will?
Heather McKinnon: The issue here is who dies. So people often rush to alter their Will at the time of separation. We tend to suggest to people that they make sure they do their Will at the time of property settlement. The issue is until you’ve done a property settlement, your Will will be sometimes in conflict with what’s happening with the property settlement. So, for example, you’ve separated, you’ve started to negotiate property settlement, but your ex-partner is killed in a car accident. The Will that they leave might provide that their assets go to their siblings and their parents and not to you. But the problem there is we can’t identify what the asset pool of the estate is, because it’s still all combined in the family law case. So we have to apply to the family Court or if the matters before the court, to seek an order as to what’s the surviving partner’s assets, what’s the deceased partner’s assets. So you can see that there’s heaps of complexity around timing in these situations and you really need to have a review when there’s a major life event. So separation is one of those. Get very clear if property settlement is not done, do I do a new Will yet or do I wait till the property settlement is done? And there’s horses for courses there.
Benjamin Bryant: And of course, in addition or separate to drafting a Will, there’s other estate planning measures in place. For example, if you didn’t want to do a Will, but you wanted to ensure that your property that you owned jointly with your ex doesn’t automatically get sucked up and become the property of your ex in the event of your death, you can change how the ownership is held, essentially from joint tenants to tenants in common. But that is on a case-by-case benefit. So if you’re looking for the benefits of that, you’ll need to get some legal advice.
Benjamin Bryant: Heather, what if you legally divorce your partner but you don’t change your Will?
Heather McKinnon: Well, again, the situation is that the effect of the divorce isn’t to change the Will. Unlike marriage, which automatically sets aside any previous Wills. In this situation, it’s really important at the time of divorce that you change your Will to exclude your ex-partner from any estate planning going forward. People often forget to do the job. I know in our practice, when we finish a property settlement or a divorce, we send out a big emboldened paragraph in the final letter. “If you haven’t changed your Will, do it now.” But many people just can’t contemplate too many big tragic events at once. Divorce is enough and they don’t want to look at their death. But we really need to get people focused on doing those jobs. And as you said at the beginning, one law, the Family Law Act, is a federal act of parliament, but the laws around succession are a New South Wales Act. So they’ve got all different requirements. The important thing when you end any relationship, is to formalise the financial arrangements. So it’s clear going forward, what are your assets, so that your executor can clearly identify them.
Benjamin Bryant: And again, I’d encourage our listeners, when they’re reviewing their circumstances and about their Wills and estate planning to get legal advice because Heather, we know there’s some horror stories when perhaps the beneficiaries have changed after the divorce, but the executor remains your ex, which becomes a very tricky situation. So get some legal advice.
Benjamin Bryant: Heather, what if you have children and don’t change your Will to include them as beneficiaries?
Heather McKinnon: So under that New South Wales estate laws you have legal responsibilities to provide for dependants, that is children and spouses, in your estate planning. So, in a situation where children are left out, then those children have a claim on the estate which will be brought by a legal representative appointed by the court to protect their interests. The reason being that if a parent dies before children have made it through to adulthood, it leaves the surviving parent with the sole financial responsibility to raise the children. And what the estate law in this country says is that once you have children, you have a primary responsibility to provide for them, to get them through to adult life. And so in this situation here, the court would overturn the Will to make provision that’s appropriate for any minor children of the deceased, even if the Will wrote them out, if you like.
Benjamin Bryant: And later on, Heather, I’ll be asking you about family provisions and when you can contest a Will and the grounds for that. But before we do that, Heather, I just want to discuss, there is also sometimes an intersect between the Federal Family Law Act jurisdiction and the state courts, and in our case, the New South Wales Succession Act. And that’s when we talk about parenting arrangements or guardianship and the effect of people including guardianships in their Wills and the effect of people not including guardianship in their Wills. Can you talk to us about that?
Heather McKinnon: So there’s a very common discussion that people raise with us when they make their Will. That is, does the guardian mean that if something happens to me, that’s who the children will live with? No, that’s not what a guardian does. A guardian steps in to make decisions about children until their adulthood. So, for example, we had that tragic accident in the Hunter Valley where parents went in that accident, leaving little ones. So in their Wills, if they had them, they would have nominated who they would like to make the decisions about the children in their absence. So if the parents have separated and the guardian that’s appointed is, say, someone’s sibling, they would then be the person that would help the surviving parent make decisions on behalf of the children from that side of the family. But they wouldn’t have the responsibility, if you like, to have the children come and live with them or anything like that. It’s a decision-making responsibility that you’re giving a guardian. And most commonly what we see is that in times of trauma, if a parent dies suddenly the other parent may want to hold the children close and not allow the children to see their deceased parent’s family. So, the guardian is the person that comes to the Family Court and says that we think it’s in the children’s best interest to have time with these people. So, we’ve got all these different roles and responsibilities. But I think the big myth is that when you appoint a guardian, they don’t suddenly have to have a responsibility to have the kids come and live with them. It’s to make decisions.
Benjamin Bryant: And I think it’s important also to note that the Will is just a document which, using the proper language, confirms the person’s testamentary intentions. It’s just a document confirming intentions. It certainly doesn’t have the effect of ousting the jurisdiction of the Family Law Act.
Benjamin Bryant: And Heather, on the subject of updating or changing your Will, do you have to start again or can you just make some notes on the existing Will?
Heather McKinnon: It’s a really interesting field. So notes on existing Wills are called codicils. When I started practice, they were very common because to redo a Will, you had to manually type the whole thing again and a codicil was an amendment to the document that was witnessed by two adult witnesses. Nowadays, prudent estate lawyers tend to just do a whole new Will because it’s not a laborious job in terms of typing a whole document from scratch. So for a Will to be legal in New South Wales, it has to be in writing and the testator has to, in the presence of two adult witnesses, sign the Will. So if you’re going to change the appointment, for example, of a guardian or add some other beneficiaries to the Will, the codicil has to be in writing, witnessed by two adult witnesses and signed by the testator. It is my experience now that codicils are very much falling by the wayside. And if you want to make a change to a Will, most estate lawyers will start from scratch. Type one clean document that incorporates the changes and get you to sign that in the presence of the witnesses. If you go back to the 18th century and the 19th century, you would have Wills that would follow people through life, and they would often have 7 or 8 codicils. But in those days, the Wills were long handed out in copperplate writing, and it was a practical way of not having to do that. I think those days are quickly coming to an end. We’re likely to have chat apps now that will just write your Will for you, Ben.
Benjamin Bryant: Heather, while you were talking, I was thinking, it can be a very simple question, but perhaps not a simple answer: what is a Will? And you’ve just defined, what a Will is in most cases. But I was just thinking, and I’ll probably digress a little bit, but in thinking of things like constructive Wills, which is for our listeners, when the document or the item doesn’t exactly meet the criteria for a Will, but a court would be satisfied that it conveys the deceased’s testamentary intentions. I remember when I was doing my Masters in Family Law, I was the first year that was allowed to do a unit from another master’s degree to go towards your own master’s degree. And I chose Wills and estate. And one of the topics was talking about constructive Wills. And there were some fascinating examples, and they were like, things recorded on cassettes or videos, intentions written on tissues, all sorts of things. And it was so interesting. But for our listeners, I just again warn you there was a difference between Queensland and New South Wales. It seems Queensland will just let anything in: there it is, that’s a Will, what are you talking about? In New South Wales they’re a little bit stricter. So I encourage you, if you’re going to do a Will, do it properly.
Benjamin Bryant: Heather, another problem we often see with Wills is that they fail to include the right assets. So should these assets be included in your Will or not? The family home?
Heather McKinnon: Well, as you were alluding to earlier, most couples buy houses using a tenancy called joint tenancy, which means the survivor automatically gets title to the home. And the reason that we do that is so that the surviving spouse doesn’t pay for transfer of ownership on the deceased share. So stamp duty, all those things are avoided. Obviously, if you’re in a situation where the family home is your sole asset, then you will make specific orders in the Will if it’s to be dealt with other than just form part of the overall assets of the estate. So, for example, you may have a disabled adult child and you might want to give that child the right to stay in the home for life and at the end of their life, the house gets sold and the other siblings get a share of it. Every family’s different. Every dynamic is different. But in terms of listing assets, what most people do is a Will that just sets out whatever I own at the time of my death will be divided between my spouse and my kids. These things that we’re talking about are when you get into more complex estate planning. And there you may want to refer to different categories of assets and how they’re to be dealt with. So the most common one would be the family home being left to one member of the family, usually because they’ve got some sort of need and you want them to have the right to stay there for a period of time after your death.
Benjamin Bryant: And I know Heather, a lot of people have family trusts and family businesses set up and they can be really, really tricky. Of course, depending on how the trust deed is arranged and family business, whether it’s a partnership or a company or something else. So that’s definitely on a case-by-case basis. I’m not going to ask you about those, but a common trap is superannuation.
Heather McKinnon: Yes, superannuation is very interesting because most people now are asked by the trustee of their fund to nominate, through a thing called a binding death nomination, who the superannuation entitlements are to go to. So, for example, in the scenario where you might have adult children from your first relationship, you may provide that your superannuation goes to those children and the rest of your estate goes to your current spouse. There’s all different reasons why you might want to nominate a particular way for an asset to go. So, for example, family trusts are used commonly in financial planning in wealthy families to transfer assets between generations without attracting stamp duty. And certainly, death duties are something that are likely to come back into Australia in the near term, I would imagine. As the population ages and as the Government has to look for revenue to fund particularly health and aged care, we may find that family trusts start to be used again to try and avoid death duties. So there’s a whole lot of stuff happening in that space as the boomers reach the end of the line and the drain on the economy becomes greater. There’s likely to be some legislative changes in this space that we’re not yet aware of. So often complex Wills are prepared with estate lawyers and accountants who specialise in estate planning. So these categories of assets that we’re talking about may be dealt with in a different way because they’re being passed through generations. So, it just shows you how complex the world is. And depending on the level of wealth, a lot more time and energy might go into an estate plan than you would imagine.
Benjamin Bryant: And as I say, Heather, you have to take your time to know how you own the home, how the family trust is set up, what the business is made up of, and your superannuation. I’ve said in previous podcasts Heather that not all death binding nominations are the same. And I remember in one of the podcast episodes I gave the example that there are differences between the superannuation funds. And my partner with their fund, once you’ve made your death binding nomination then that’s it, it doesn’t change until you change it. But with my fund, the death binding nomination only lasts for three years and you have to keep renewing it. And so there’s the classic example of the new girlfriend getting the superannuation entitlements instead of the children, which can be significant. Some people think superannuation is 30, 50 grand or something like that, but a lot of times it could even be worth more than the family home. So it’s important you get it right and it’s important you know your stuff.
Benjamin Bryant: Now Heather, let’s talk about debt. What happens if the estate has debts? A home mortgage, car loan, personal loan, etcetera. Can this cause problems for beneficiaries?
Heather McKinnon: Well, it can if the liabilities are more than the assets. So, for example, if we’re administering a probate in our office, which we do every day, what we’re doing is calling in the assets of the estate. So that is all of the different assets that the deceased owned. And then we have to meet the debts of the deceased. So, for example, home mortgages are secured over the land on the title and when the person who owns the home dies, the mortgage has to be paid out of any proceeds of sale. So the death doesn’t extinguish the loan. The same goes for most secured credit: car loans, equipment purchases. There are some debts, however, that do die with the deceased, but they tend to be consumer debts and not in a large amount. So in assessing what’s left in an estate, the estate lawyers have to pay back the creditors who are existing at the time of death.
Benjamin Bryant: And having a poor executor can sometimes be a real problem for those left behind, Heather. What are the responsibilities of an executor and what should you look for when choosing one?
Heather McKinnon: I always say to our clients, Ben that the executor should be someone who has, some level of commercial acumen. They’re used to dealing with bureaucracies. They’re people that would feel comfortable to go to a lawyer and sign the paperwork and give instructions. In the main, the person that is your executor is usually, for most Australians, their spouse and then their adult children. But in a case where you’ve got blended families where there may be a chance of conflict, then most estate lawyers will recommend that you appoint a family member and a professional. So it may be an accountant or a family member and someone else that’s closely related to the family but has a higher level of education in the fields of financial management. So it may be an uncle who’s a good business person or something like that, depending on the complexities. Because once you get into very complex estates, you’ve got to take advice on taxation, capital gains, a whole lot of stuff that you really need to make sure the person you’re putting in the seat is comfortable to give instructions about. So if you’re worried about your partner not having those skills, appoint a secondary executor who can help with that decision-making. That would be my top 10.
Benjamin Bryant: That was a very responsible answer. But we all know that most people either choose the eldest child or the responsible one.
Benjamin Bryant: And Heather, another big problem for beneficiaries is if your Will is contested. Who wants to go through months or years of court proceedings before an inheritance is even finalised? On what grounds can someone contest a Will? And is there anything you can do when writing your Will to avoid this?
Heather McKinnon: I think when writing a Will you should ask firstly, from the legal adviser, who do I have to provide for in my Will? And the New South Wales legislation sets out who that is. And basically, the categories are what we call primary beneficiaries, who are your spouses or your children who have not reached adulthood. And the secondary beneficiaries would then be adult children who may have a claim, depending on all sorts of things that we deal with in the legislation. But it’s important to understand that your Will isn’t the be all and end all. If you try and write out particular adult children or you forget to include people that you’ve financially supported, it’s a recipe for disaster. The main provisions of the New South Wales legislation are that you must provide for those that have a legal dependency on you, that’s the lay way to explain it. And the provision has to be adequate and appropriate for the circumstances. So where there is a large estate worth many millions of dollars, then the adequacy of the provision can’t just be enough for a normal person to live on. It’s got to be lined up with the expectation of lifestyle that that person enjoyed with you during your lifetime. So we get into these questions of what’s adequate and what’s appropriate. We try to look at the circumstances of the person and their financial interplay with you when you’re alive to determine what’s appropriate in terms of what you get from the share of the estate. In the main, most contests are between adult children from the respective deceased’s camps and siblings who are at war with each other over their parent’s estate. I think the stats are Ben, the last time I looked, the most common family provisions cases are actually between siblings. Whereas we tend to think in the public it’s the second wife and adult children from the first marriage, it’s actually siblings that litigate the most.
Benjamin Bryant: And again, for our astute listeners, they can check out chapter 3, which is the Family Provisions section of the Succession Act of New South Wales 2006. And if you want to know who can attack your Will, essentially head along to Section 57 to see who is an eligible person.
Benjamin Bryant: Heather, what if you don’t die but you suffer a serious accident or illness that leaves you unable to manage your affairs? How do you protect your family if that happens?
Heather McKinnon: So as we get better at talking about incapacity and death, we’ve developed in Australia two main documents to help with these sorts of issues. So the one that we’re talking about here is called the appointment of a guardian. So a guardian is someone that you appoint to manage personal decision-making about things like your health. So the biggest crisis facing my generation is obviously dementia. So most Australians over 50 should have a guardian (Enduring Guardian) appointed so that if they lose the ability to make decisions through dementia or they have a stroke or they have a catastrophic accident, they’ve empowered someone that they trust and who they think has the right skills to decide what sort of medical care you get, where you live, what allied health services you may need. So, for example, someone who’s in a nursing home may need podiatry, allied health, physiotherapy, things like that. So, the Enduring Guardian is the person that you give that responsibility to. Again, most Australians appoint their spouse and their adult children, but if that’s not appropriate, you need to look around and decide who’s got the right nature, personality, and strength of character to step in and make those decisions if I can’t make them for myself.
Benjamin Bryant: And of course, then there’s the Power of Attorney documents as well. Go hand in hand with the Enduring Guardians. And I know almost on a daily basis, we’re explaining the difference between those two documents to our clients and how important they are. And also, just as you were speaking, Heather, and you mentioned the word dementia and you’re encouraging people to try and do these documents as early as you can, I thought of the topic of capacity. Capacity is probably too big for us to talk about in this episode, but we must make a note that we’ll talk about it in another episode, because if you leave it too late you could go through with these documents, wills, Power of Attorneys or Enduring Guardians, but they may not be safe if there’s a question of capacity.
Benjamin Bryant: Final question for you, Heather Do you even need a lawyer for estate planning, or could you just use DIY kits to write a Will or appoint a Power of Attorney or Enduring Guardian?
Heather McKinnon: Look, it’s better to do it yourself if you don’t want to spend the money, rather than have nothing. But it’s not an expensive investment in certainty to have those three documents prepared. And it does give those that you love peace of mind. So you’re not putting them into the chaos of litigation or having to apply for letters of administration if all those documents don’t exist, I would implore most people to make sure that those three documents are done as early as you can, particularly those people out there who have young children. Do them sooner rather than later. We see enough of unexpected death in our community at a young age. And. if you’ve got assets, really part of your responsibility to your family is to have those three documents done.
Benjamin Bryant: And again, Heather, I’m just going to harp on about intentions. What these documents try and do is confirm the person’s intentions. What are they intentions? And sometimes the intention or the effect or the outcome is quite simple. But to achieve that simple outcome or intention is actually quite difficult to do and you actually need a complex Will or a set of documents to realise that intention. So a lot of people mistake that. And so I encourage our listeners to absolutely get independent legal advice about their Will and their estate planning needs. And ultimately, if they do nothing with that advice and they’ll walk away and do their DIY stuff, then so be it. But I think at least get the advice.
Heather McKinnon: I was going to say, I think one of the things we haven’t spoken about is the solutions to these problems are often very simple. So for example, the second marriage where you’ve still got little kids, just go and get some advice on insurance. Life insurance products really do help when you have dependants across a number of categories because you can make a specific policy for each of those categories. But your financial planner will help you with those decisions. But you know, for a couple of hundred bucks, I really think you’re better to get legal advice if you can.
Benjamin Bryant: Well Heather whether our listeners employ a lawyer or use a DIY kit, I just hope this show will help everyone to realise just how important it is to do your estate planning and to update things whenever there are major changes in your life.
Heather McKinnon: Me too. I know people don’t want to contemplate their own death, but a bit of discomfort can avoid a lot of pain for family and loved ones when you’ve gone.
Benjamin Bryant: Well said. Fingers crossed, everyone listening right now is starting to think about their estate planning. Next month, we are going to talk about divorce and separation as it affects people of Aboriginal and Torres Strait Islander heritage. We are very fortunate to have former Federal Circuit Judge Robyn Sexton as our guest. Robyn is one of the original architects of the Special Indigenous Court to deal with family law disputes in a culturally respectful way. So, she has much to share and we are very excited to have her on the show. If you have questions about Indigenous family law, please send them by email to familymatters@bryantmckinnon.com.au or message us on Facebook. We will put a full transcript of today’s show and links to any resources mentioned in the show notes on our website. And don’t forget to share this episode with anyone and everyone to remind them just how important estate planning is. We hope to have your ears again next month.