Estate planning

Estate planning A well prepared and executed estate plan can not only save your estate unnecessary costs in the future but can also save your loved ones from unnecessary stress after your death.

Estate planning is the process in which you discuss with a legal practitioner what you want to happen with your estate, known as your assets, when you die. It is a plan which involves you considering who you want to be executor of your estate (the person in charge of your Will), who you want to benefit from your estate, your funeral wishes and who you want to look after your financial and personal/health matters if you were to lose capacity during your lifetime, for example by way of dementia or stroke. Effective estate planning ensures your assets are protected and distributed to the right people according to your wishes. Your Will is one of the most vital documents in this process. Outlining your wishes A properly drafted, up-to-date Will is the only way that you can be sure your assets will be dealt with as you wish when you die. In Western Australia (WA), the executor of the Will generally needs to apply for a Grant of Probate through the Supreme Court for permission to take control of the estate. The Grant of Probate confirms that the Will is valid and that the executor is legitimate. If there is no Will, a next of kin or relative can make an application for Letters of Administration to the Supreme Court to receive control of the estate. Either option will grant you the right to access the estate, including bank accounts and the sale or transfer of property, among other things. If you die without a valid Will, or your Will is invalid, your estate will be treated as an “intestate” and your assets will be distributed under the WA intestacy law to your surviving relatives after all your debts have been paid. In WA, if you get married your Will is automatically revoked, unless the Will was made with marriage in mind. Getting a divorce in WA does revoke your former spouse’s rights unless the divorce occurred before 9 February 2008. Enduring Power of Attorney and Guardianship Most people know you should write a Will to make sure your assets are distributed according to your wishes when you die. But what happens if you are left unable to make decisions for yourself due to accident, illness or other circumstances? While a family member can step in at this time and start assisting you with decision making, they may lack the legal authority to make some decisions or there may be disagreement between family members. By making an Enduring Power of Attorney and an Enduring Power of Guardianship, you can nominate a trusted family member or friend, or an organisation in the case of an Enduring Power of Attorney, to step in

and make decisions on your behalf when you are unable to make your own decisions. Unlike some other States and Territories, in WA, an Enduring Power of Attorney is limited to making decisions about your finances and property only. An Attorney in WA cannot make personal, lifestyle and treatment decisions. To appoint someone to make personal, lifestyle and treatment decisions in WA, you need to make an Enduring Power of Guardianship (EPG). An Enduring Guardian can make decisions around where you live, what services you engage, and provide consent for health care services and treatment. Similarly, an Enduring Guardian cannot make any financial or property decisions on your behalf. In WA, you also have the choice of making an Advance Health Directive (AHD), which is a legal document that enables you to make decisions now about the treatment you would or would not want to receive if you ever became sick or injured and were incapable of communicating your wishes. In such circumstances, your AHD would effectively become your voice. You must have full legal capacity to make an Enduring Power of Attorney, Enduring Power of Guardianship or Advance Health Directive document, which means you understand what the document is and what it does on your behalf once you lose capacity to make decisions for yourself. For more information, contact the Office of the Public Advocate on 1300 858 455 or visit publicadvocate.wa.gov.au, or contact the Public Trustee on 1300 746 116 or publictrustee.wa.gov.au.

Estate planning

Some things in life are worth protecting

Getting your affairs in order is an important part of your life planning, yet over half of Western Australian adults haven’t planned for what might happen to them if they lose the mental capacity to make decisions, or what will happen to their assets after they’re gone. The Public Trustee is an independent and impartial statutory authority that has been helping Western Australians and their families look after what is important to them, for over 70 years. Give yourself peace of mind. Make or update your Will and Enduring Power of Attorney today to ensure your loved ones are protected.

For more information visit www.publictrustee.wa.gov.au or phone 1300 746 116

n Wills n Deceased Estate Administration n WA Will Bank n Enduring Power of Attorney