Estate Planning

A woman holding a pen up to glass writing about estate planning

“By failing to prepare, you are preparing to fail.” This quote by Benjamin Franklin, whilst quite a thought-provoking phrase, has remarkable truth when it comes to estate planning.

A massive 41% of Australians do not have a valid will.¹

From a practical perspective, this is a significant worry for any loved ones left behind to manage your affairs in the face of no guidance.

If you’re a particularly private person, stop for a moment to think, carefully, about who would do what if you either lost capacity or passed away.  Do you know?

What many people don’t realise is that no one has the automatic right to administer your estate upon your death, if you die without a will, or if you lose capacity having not appointed an attorney.  It can take months for someone to be granted the authority to deal with your affairs.  In the interim, many things need to be arranged; your healthcare, bills, funeral etc.  What about children and/or pets?  Who looks after them? Who has the right to manage these things?  There is likely nothing more distressing than seeing a family trudge their way through the painful, overwhelming and uncertain road resulting from a lack of estate planning.

Estate planning is an invaluable and unquantifiable investment. It is also an investment that you may never see the fruits of, but your loved ones will.

There are a significant number of reasons why it’s a worthy investment to take part in your estate planning without delay:

  1. YOU CONTROL WHAT HAPPENS: You can control who takes over the management of your affairs. This is a significant task. By appointing someone as executor in your Will or an attorney in your Power of Attorney, you know who is going to be responsible for carrying out your wishes. You have the opportunity to put a personal insurance policy in place with a Power of Attorney where you can direct how you wish to be cared for if you cannot communicate those wishes when you need to the most. It allows you to appoint someone you trust to make decisions for you. If you have specific directions about your healthcare, particularly about being resuscitated, you have the opportunity to direct your medical practitioners, attorneys and family of those instructions.
  1. YOU AVOID SIGNIFICANT COSTS: Whilst some people question the cost of estate planning, they would be astounded at how costly things can become when there has been no estate planning. Litigation can be the result of many issues coming to light, including contesting wills, promises not kept, mistakes in wills, writing your own will (not recommended), not understanding your assets and how they fit into your estate planning. If you are unaware of how your estate plan works or you do not have an estate plan in place, your estate could face legal costs in an effort to understand what “should” happen.These legal costs are often driven by the conduct of parties involved in the process and if there is conflict amongst the family, those costs can be catastrophic. Legal fees in a deceased estate with such uncertainty can easily reach upwards of $50,000.00. In contentious matters, it can easily exceed even that amount.
  1. YOU CAN PROTECT YOUR FAMILY: More often than not, the family is the primary recipient of the grief that follows your passing. Your family will be responsible for untangling the mess and navigating the legal maze involved in a deceased estate. If your estate plan is set out appropriately, your family can follow a much more simplified process. You may want to set up specific protective mechanisms for those of your loved ones who rely on you.

You can ensure your children have a guardian and your pets have someone to care for them. This is a significant consideration for anyone with loved dependents; even the furry kind. Many people do not realise that guardianship of minors or of pets is not automatically addressed
in the law if you die without a will.

  1. AVOID/REDUCE CONFLICT BETWEEN THE FAMILY (RIP OFF THE BANDAID): Depending on your circumstances, your decisions may impact upon conflict amongst the family, sometimes, even cause it. This is a chance to understand what can/could impact on any family conflict and reduce or even avoid that conflict with informed decision making and implemented strategies around it now. If your wishes are likely to offend or upset people, you have the opportunity to inform them now of your decisions. You cannot always do this when you do not have the benefit of legal advice which may impact on your estate planning decisions.
  1. MAKE INFORMED DECISIONS ABOUT THE NOW, WHILST YOU HAVE OPTIONS: Many people often say to us that they would do things differently if they had known XYZ. Much frustration, and sometimes pain, can be avoided by simply understanding your position, calculating risk and acting decisively. Getting estate planning advice when it counts (i.e. now!) sometimes can offer you more options to help you achieve your intentions. If you leave the advice until it’s too late, you may have either limited or even no options left available to you. If you do have options left, it might be more costly than earlier on.

Many people are not comfortable with the discussion about mortality; however death is life’s greatest certainty. Where your family and friends suffer heartbreaking days without you in their lives, this is one particular task you can undertake to help them; something of which they will be forever grateful. You can rest assured that your affairs are in order and you and your loved ones know what to expect.

¹Tilse C, Wilson J, White B, Rosenman L, Feeney R: Having the last word: Will making and contestations in Australian, ARC Linkage Project, March 2015

Bennett & Philp Lawyers, one of MPA’s Corporate Partners, has provided this information to Melanoma Patients Australia in July 2017 and MPA is grateful for this contribution.
For any support or information following a
melanoma diagnosis please call MPA’s Support Line 1300 88 44 50.