By Kristoff Lajoie, Kabo
A lawyer might say that it is naïve for a person not to contemplate that commencing a marriage may eventuate in its breakdown, or registering a business may eventuate in its failure, or even that putting savings in superannuation will protect your future from a crash in the market. We may admit that the above scenarios are possible but not probable. In contrast, there are two accepted certainties in life. One which we evade or “minimise” (taxes) and the other we do not give enough consideration until it is too late (death).
The number one cause of death is birth. A morbid but perhaps not entirely characterisation of life is that it is a disease for which there is no cure (yet), so the best we can do is plan ahead, or as referred to in the profession: estate planning.
There is more to planning your future than simply having a Will. There may be preliminary steps to make the transition of your estate to your intended beneficiaries easier or there may even be steps that can be taken that can provide an earlier benefit without affecting enjoyment of your assets. For example, if you own property, do you know who exactly is on title? Depending on the titleholding of your home, the title may automatically pass to your surviving partner – or to your children to the exclusion of your partner. There may be avoidable stamp duty implications if is not registered according to your wishes.
The law is presently changing in this regard, however, laws regularly change and the current regime may not necessarily be in place at the time of your demise – which is were a Will, setting out specific instructions on what is to happen to your estate and that will supersede intestacy laws, will be seminal.
Depending on how large or complex your living estate is, there may be other options (other than just having a Will) that will best set you up for the next stage of your life – whether it may be retirement, early gifting of your estate to your children or making arrangements for your medical treatment in certain circumstances.
This could include registering a trust to hold assets on your behalf, or to transfer real estate to children on the condition that a life-interest is granted to you. You may also wish to have Powers of Attorney or an Advanced Care Directive to bestow decision-making power about your finances and medical treatment in circumstances where you are unable to exercise your own.
Everyone’s individual case differs but to ensure you have taken proper account for your future, it is best to speak with a qualified legal practitioner so you can enjoy your advanced years with peace of mind – for yourself and your family.
Kristoff Lajoie is a senior associate with Kabo Lawyers and manages matters relating to estate planning, probate and Wills as well as family law, divorce, custody and property matters.