Estate Planning

A will is a legal document that sets out how you want the things you own to be distributed when you die.

Making a Will is the only way you can ensure that when you die, your estate will be distributed according to your wishes.

Making a will is not a morbid thing to do. It is a positive step you can take to:

• provide for the people you care about

• leave particular items to certain people

• appoint a person you trust to carry out the instructions in your will (your executor)

• leave any other instructions you may have (for example, about your funeral arrangements and organ donation)

• make a gift to charity if you wish.

Wills aren’t just for people who own property or have lots of money.

Even if you don’t have a lot of money or you don’t own a house, you may want to leave other valuable or sentimental items such as art works, coins, jewellery, antiques, letters or photographs to particular people.

After your death your property and belongings are referred to as your estate.

If you die without a Will (referred to as ‘intestate’), no one knows who you wanted as your beneficiaries. Your assets will be distributed according to a formula set by legislation.

This could be very different from what you wanted or intended to happen. Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind. If you die intestate and you don’t have any relatives closer than a first cousin, your estate will go to the government.

A will only takes effect after you have died. If you want someone to look after or make decisions about your finances or your health care while you are still alive but become unable to do this yourself you will need to make separate documents called Power of Attorney and Enduring Guardianship.

• a list of your assets such as property, bank accounts, superannuation and investments

• the names and addresses of your beneficiaries (the people who’ll receive your assets)

• if you have children under the age of 18, the name/s of whomever you'd like to appoint as their guardian(s)

• specific gifts you wish to make to particular people or organisations, such as personal items or sums of money

• the details of your funeral if you have a pre-paid arrangement

• a responsible and competent executor.

When you make a will you will need to appoint an executor and, in some circumstances, a trustee, who will handle your affairs when you die. People usually choose one person to perform both roles, but you can name different people as executor and trustee, and you can name as many executors as you like (although appointing more than two can complicate things).

An executor’s role is to obtain probate, pay your debts, and distribute your assets in line with your will.

Generally, a trustee administers any trusts set up in the will. This usually happens where you leave assets to people under the age of 18. Before you nominate someone as an executor or trustee, you should make sure they’re comfortable taking on the responsibility you are giving them. It is often a good idea to appoint someone younger than you, or to nominate reserve executors in case the ones you have appointed die before you do.

Your will lasts until you die, unless you change it, make a new one or revoke (cancel) it.

A marriage will also revoke a will unless the will was made anticipating that particular marriage. If you plan to marry or divorce you may need to update your will.

A will can be challenged on the grounds that it is not valid. The person contesting an invalid will would have to show that:

• it was not your last will (you had made another one at a later date) • it was not properly signed and witnessed

• you did not have mental capacity when you made it (which is why it is important to make a will while you are still well and there is no question about your mental capacity)

• it was changed after it was originally signed, or

• you were forced or pressured (rather than encouraged) into making the will. • Certain categories of people can also contest a will within 12 months of your death if they believe they weren’t properly provided for in the will. This is called a ‘family provision claim’.

You can change your will at any time as long as you have mental capacity. However, you cannot change your will by crossing out something in your will and initialling it, or writing something different in its place. You can make a ‘codicil’ (a separate document in which you make a change to your will) which will need to be signed and witnessed in the same way as when you made your will. It is usually best to just make a completely new will.

Leaving a gift in your will to a charity (a ‘bequest’) is a powerful way of expressing your support for a cause that is important to you. You may choose to leave:

• a residual bequest (whatever is left after all other gifts and costs have been deducted from your estate)

• a percentage of your estate

• a specific sum of money

• a gift of property or shares.

• It is important that this is done correctly (the charity must be correctly described) and that your loved ones are properly looked after.

There are two main ways to indicate your intention to donate your organs upon your death. Most commonly people indicate their intention to donate their organs when applying for a driver’s licence. You can also register your wish to be an organ donor on the Australian Organ Donation Register administered by the Department of Human Services.

But even if you indicate your intention on your driver’s licence or register your wish to be an organ donor there is no guarantee that your organs will end up being donated. This may be because your organs are unsuitable for donation. However, in many cases the family of the deceased prevent organ donation.

Under s23(1) of the Human Tissue Act 1983 (NSW) hospital staff may remove the tissue of a deceased person if the deceased has indicated their consent to such removal during their life time. However, in practice hospital staff will not remove tissue without consulting the deceased’s next of kin.

When a person dies and has indicated that they wish to donate their organs their family members will be asked:

1. to confirm that the deceased had not changed their mind since they recorded their intention to donate their organs; and

2. to consent to the deceased’s organs being donated.

If a family member states that the dead person had recently changed their mind as to donating their organs or fails to consent to the dead person’s organs being donated, no donation will occur.

Another way you can indicate your intention to donate your organs is through your will. For example you could include in your will the following:

“I direct my Trustees that I wish to donate any of my suitable organs and tissue for transplantation.”

Alternatively, you could specify particular organs you wish to donate, for example:

“I direct my Trustees that I wish to donate my kidneys, heart, lungs, liver, pancreas, heart valves and bone tissue. I do not wish or consent to the donation of my skin or eye tissue.”

Technically a deceased person cannot own their corpse and therefore cannot legally bequeath it. However, in your will you are permitted to include directives in relation to the disposal of your body. This can include the wish that your organs be donated. It is less likely that your family will withhold their consent to organ donation if you leave such a directive in your will. And it will be easier for the medical people responsible for transplant and organ issues to deal with the relatives of the deceased person.

While leaving a directive in your will indicating your wish to donate your organs may persuade family members to consent to your wishes it is important to talk to them about this decision. The nature of organ donation is that it must be carried out as soon as possible after death. If you have not spoken to your family about your decision there as risk that your wishes may not be observed because your family has not had an opportunity to read your will before they are required to give consent.

As, the nature of organ donation is that it must be carried out as soon as possible after death, and typically a Will is only looked at by loved ones at a much later time there is a risk that your wishes may not be observed, because your family has not had an opportunity to read your Will before they are required to give consent. Which is why it is so important to speak to your family about your decision.

A complete Advance Health Care Directive can also help to instruct clinicians and family members on your wishes to donate.

The Advance Health Care Directive is a legal document completed by you with the help of a GP (if required) and then witnessed by a solicitor.

What an Advance Health Care Directive includes:

• outlines what medical treatment or health care you want if you can no longer make decisions for yourself. It can be general (e.g. that you wish to receive all available treatment) or specific (e.g. that you wish to decline a certain medical treatment) • enables you to appoint an attorney for health and personal matters

• includes information that health professionals should know, including health conditions, allergies, and religious, spiritual or cultural beliefs that could affect your care.

We strongly recommend you complete a Will and Power of Attorney, Enduring Guardianship & Advance Health Care Directive documents at the same time.

This ensures your loved ones have clear instructions, confidence and security in what could be a very emotionally difficult time for them.