Are you delaying in updating your will or estate planning? If you are doing so, you are putting your will and estate planning at risk until it's too late. Wills and estate planning for your estate should be done early. Source: http://www.robsonhayes.com.au/the-risks-of-putting-off-your-will-and-estate-planning-until-its-too-late

1. Risk of Putting off your will and
Estate Planning Until it’s Too Late

2. Estate planning is the process of putting in
place contingency plans for your business (if
any), investments and personal use assets.

3. There are a number of important reasons
why you should plan your estate including:
• Ensuring that your wishes are carried out for
the distribution of your assets
• To minimise any tax consequences for your
estate and the beneficiaries.

4. The 6 key risk areas
If you have been putting off the decision to execute a
Will and plan your estate, you are not alone. There are
6 key risk areas which affect people and their loved
ones:
• Dying intestate
• Invalidity of your Will if you marry or divorce
• Financial problems of your children
• Legal challenges to your estate
• Keeping your Will up-to-date
• Changes to tax laws.

5. Dying intestate
Approximately 40-50% of people in Western
Australia die intestate. If this occurs, your
assets will be distributed according to section
14 of the Administration Act 1903 (WA). The
statutory formula for the distribution of your
assets may be very different from your wishes.

6. Invalidity of your Will if you marry or
divorce
A Will is invalid if:
• You make a Will prior to marriage which is not in
contemplation of that marriage;
• You divorce your spouse after making a Will
unless the Will was in contemplation of that
marriage.

7. Financial problems of your children
If you intend to pass your assets to your children
and in the future they separate from their spouse
or defacto partner, the assets you gift to your
children may become part of the matrimonial
property. Your assets could end up in the hands
of non-blood relatives. Separately, there may be
a risk of your children becoming bankrupt in the
future and the assets you have gifted to them
being used to pay their debts.

8. Legal challenges to your estate
It is important to ensure that you take steps in
planning your Will to minimise the chance of your
estate being challenged. A typical example is a
‘death-bed’ Will where your capacity to make a
valid Will may be challenged. If your Will is
successfully challenged, your assets will be
distributed contrary to your express wishes.

9. A poorly drafted Will is another common problem. If
there are disputes about the meaning of the Will, this
may result in legal proceedings in the Supreme Court.
In the case of Prichard v Prichard [2015] WASC 170, a
‘hotchpot’ clause was required to be interpreted. The
clause was intended to equalise the benefits received
by the beneficiaries, allowing for moneys received
from the testator during his lifetime. This was not the
ultimate outcome reached in this case.

10. Generally speaking, the reasonable legal costs are
paid out of the deceased estate, thereby reducing
the value of the assets which can be distributed to
the beneficiaries of your Will.

11. Keeping your Will up-to-date
Over time your decision concerning your
distribution of assets may change, so you need to
keep your list of assets current and where
necessary update your Will to ensure your wishes
are carried out. You may also need to update your
Will if a beneficiary or the executor dies.

12. Changes to tax laws
It is important to update your Will and other parts
of your Estate Plan in the event of major changes
to tax laws. If you do not update your Will, the
beneficiaries of your Will may obtain less than
they should have if you had kept your Will up-to-
date.

13. Putting a Will and other strategies in
place
If you do not already have a Will in place, you
need to consider:
• Who will inherit your assets?
• Do you need any assets managed after your
death or to stream income to children through a
testamentary trust?
• Who will be your executor?
• Your funeral arrangements.

14. Having a Will professionally prepared is only
the first step because estate planning is more
than just having a valid Will. You should also
consider a number of additional strategies for
protecting your loved ones such as:

15. • Holding property in joint tenancy
• Establishing a trust & transferring money & other
assets to the trust
• Giving gifts to beneficiaries
• Nominating beneficiaries of your life insurance
• Making a valid binding death benefit nomination
of your superannuation to your beneficiaries.

16. Depending upon your circumstances, you
should also consider the following issues:
• A power of attorney can be put in place if you are
unable to make financial or legal decisions on your
own behalf in the future
• An enduring power of guardianship can be put in
place so that someone can make personal and
lifestyle decisions for you in the future (eg. medical
decisions, where you live, how your health care
should be maintained)
• If you own a business, will there be any
consequences for your business partners or family?;
• Do you need to have life insurance in place?

17. Our team of experts can provide you with advice
and assistance with the matters related to Will and
Estate Planning. Call Robson Hayes Legal on (08)
9322-2256 or email at info@robsonhayes.com.au
to discuss your problems with us. For more
information you can also visit
www.probatewa.lawyer.