16 Dec 2020
Is your estate planning appropriate?
By Scott Whitla
I am often asked ‘What is estate planning?’ For me, estate planning is about passing appropriate assets to the appropriate people at the appropriate time. In many cases, that means passing assets (or knowledge or values) to the next generation during a client’s lifetime. For many people, ...
... it will not be ‘appropriate’ to wait until their death before determining what assistance or benefit they should provide to their children and grandchildren or what charitable objectives they might wish to achieve.
Who are the appropriate people?
When we are talking about the appropriate people, we are generally talking about the desire to benefit your spouse, children, or grandchildren. It is generally not the intention to benefit creditors, the tax office, former spouses, or indeed lawyers (who tend to be the only ones to benefit when an estate plan goes awry and the inevitable disputes follow).
When is the appropriate time?
The appropriate time might depend on the immediate cash needs of beneficiaries, whether those beneficiaries are exposed to relationship or business risk, and whether those beneficiaries are spendthrifts or simply too immature to make sensible financial decisions. In many cases, it may well be that the use of testamentary trusts is appropriate to provide a level of asset protection and tax planning for the intended beneficiaries.
Your will and other documents
Of course, preparing a will and associated legal documents is an essential part of any estate plan. Having a will not only prevents you from dying intestate (and that does not mean you die in New South Wales!), it also means you will not lose the valuable opportunity to put the appropriate people in charge of administering your estate or raising your infant children or taking control of your family business.
Drafting or reviewing your will also means you do not lose the opportunity to start a broader conversation around how best to benefit your family. That conversation often leads to the realisation that your children would be much better off receiving some assistance (financial and non-financial) while they are younger and in need of assistance rather than waiting until they are in their 60s or 70s to receive an inheritance. It also means those conversations might see you realise that you would like to see some of your charitable objectives implemented during your lifetime so you can observe and enjoy the outcome of your charitable intentions (and it often provides a more tax effective result as a side benefit).
These conversations might also lead to you preparing a letter of wishes addressed to your children, grandchildren, trustees, and executors where you might document some of the values by which you have lived your life and by which you hope future generations will live theirs. These documents are also an opportunity for you to pass on some valuable information and knowledge to the next generation about how you recommend they manage their inherited assets or benefit from your business and to express some of the hopes and aspirations you might have for your family members.
It is also often the case that these discussions around estate planning identify the need for the proverbial ‘grease and oil change’ for your trust deeds, enduring powers of attorney, and other related documentation. It is also a useful exercise to identify what assets might form part of your estate. For example, estate assets might include your shareholdings in a company, your interest in a partnership, or loans or unpaid present entitlements owing to you by your family trust. However, they will not include assets owned as a joint tenant, held in a trust, or owned by a company, or superannuation benefits and life insurance proceeds paid directly to beneficiaries. How to best deal with those non-estate assets needs to be carefully considered as part of your broader estate plan.
Life planning
As you might already have come to understand, appropriate estate planning is much more than just making a will. Appropriate estate planning is really about life planning and it is often the impetus for much broader family discussions.
Benjamin Franklin famously said, ‘In this world nothing is certain but death and taxes’. However, death or tax should not be the only drivers for you in starting a conversation about how best to benefit and assist your family and those who are nearest and dearest to you. Perhaps that assistance could or should come a little sooner than you might otherwise have thought appropriate.
Scott Whitla
Partner, Equity & Private Client
McCullough Roberston
Scott Whitla is an accredited specialist in succession law, specialising in all aspects of succession planning, estate administration, and estate and trust litigation. Scott leads McCullough Roberston’s Equity & Private Client team and is independently recognised as an industry leader in trusts and estates by Best Lawyers and Doyle’s Guide. Scott’s clients include high-net worth individuals, accountants, financial advisers, and other legal firms and their clients. Scott is also a nationally accredited mediator and has tertiary qualifications in law, economics, and commerce.