Leading Estate Planning & Administration Lawyers

What is an Estate Plan?

People often underestimate the importance of an Estate Plan, and there is a general misconception that it stops at the signing of a Will. However, Estate Planning is so much more than that. It is an action plan that sets out what you want when you have lost capacity and/or die, and prior to that, helps you build wealth while protecting your assets during your lifetime.

If you do not take control of your circumstances and take active steps to create your Estate Plan, tax and other legal advantages may not be available to you, and important decisions could be made on your behalf by someone you would not choose, at your expense, if you lose capacity or have passed away. These decisions could be made by entities of the State such as NCAT’s Guardianship Division and/or the Supreme Court, who may not make decisions in line with what you had wished for yourself and your family. 

An Estate Plan will cover who is to manage your financial affairs and the type of lifestyle and care you wish to have, if you lose capacity to make those decisions for yourself. It will also cover how your assets are to be distributed to your loved ones once you pass away, and who is to administer your Estate. 

The important documents and things to consider under an Estate Plan include:

• Wills
• Powers of Attorney 
• Appointment of Enduring Guardians 
• Guardianship Orders
• Financial Management Orders 
• Self-Managed Super Funds (SMSF)
• Family and Discretionary Trusts 
• Industry Superannuation Fund
• Insurance

What is a Deceased Estate?

Put very simply, a deceased Estate is made up of the deceased’s assets and property at the time of death. It is important to note that there is a difference between Estate assets and non-Estate assets. 

Estate assets are assets that the deceased had sole legal ownership over and can be distributed expressly by a Will. This includes any real estate, money in bank accounts, motor vehicles, and investments such as shares, stocks and cryptocurrency (provided those investments are not held by someone else, such as through superannuation or a managed fund). It also includes property such as jewellery, personal possessions and household items belonging solely to the deceased at the time of death.

Non-Estate assets are assets that the deceased did not have sole legal ownership over. Examples include assets in joint ownership with another party, discretionary/family trusts, company assets, superannuation and life insurance proceeds (for example if the policy was held through a superannuation fund). 

It is also important to note that before the assets of the Estate can be distributed, the debts and liabilities of the deceased must first be paid off. This includes the payment of any loans, mortgages, income tax, capital gains tax, credit card debts and funeral expenses. 

Some of the important things to consider when dealing with a deceased Estate include: 

• Probate 
• Letters of Administration 
• Superannuation and Insurance Disputes 
• Notional Estate Claims 
• Family Provision Claims 
• Other Estate Claims such as Removal & Appointment of Trustees and Proprietary Estoppel
• The actual administration of the estate, which is the process of selling or distributing the property, paying debts and resolving the final tax position.

We understand that Estate Planning, and dealing with deceased estates, can be delicate matters, and we strive to handle your matter with care and efficiency to ensure that your best interests are protected at all times, and your wishes are clearly set out in the event that you are no longer able to make these decisions for yourself. Contact us on (02) 8080 7585 for a free consultation with our experienced Estate Planning lawyers in Sydney.