I am currently at the stage of life where I seem to spend every second weekend attending a baby shower. Planning for the arrival of a baby is a busy time and most first time mothers have long lists of things to do or buy. Given the significant change in family circumstances and responsibilities once a child comes along, estate planning should be added to the pre-birth to-do list. If you do not already have a Will that provides for your children, then expecting a baby is a critical time to think about your estate planning.
A Will sets out who is to receive your assets after your death. If you do not have a Will, then the law provides a formula (called the ‘rules of intestacy’) for how your estate is to be divided between your family members.
In the ACT, if you are survived by both a partner and children, then your estate will be divided between all of them and your partner may be required to hold some of your assets on trust for your children until they become adults. This can cause huge problems for the surviving partner who, in most cases, needs access to all available funds to help make ends meet after losing the income of the partner who has died. If you want to make sure your partner receives everything on your death, then you should make a Will specifying this.
We are not qualified to provide financial or insurance advice; new parents should seek appropriate advice on insurance to cover unexpected events such as death or illness.
In addition to dealing with the ‘who gets what’, a Will has the important function of nominating key decision makers, in particular, executors and guardians.
Your executor is the person who has the job of carrying out the terms of your Will. You can have multiple executors, in which case they must act together. The executor is responsible for securing your assets, making sure all your liabilities are paid, and distributing your remaining estate to your beneficiaries.
If your children are still minors, then it is the executor’s job to hold their inheritance on trust until they turn 18 (or whatever later age is nominated in the Will). While looking after the trust funds, the executor decides how the inheritance is invested and can release money for your children’s education and maintenance. The inheritance can only be used for the benefit of your children, but your executor controls the purse strings until your children are able to receive their inheritance. When deciding on an executor, you should choose someone who is trustworthy, reliable, and organised.
It is also a good idea to nominate a guardian to look after your children in the event that both parents have died. The guardian makes decisions for the care and welfare of your children such as: where your children live; the medical treatment of your children; how your children spend their time; where your children go to school; and whether your children are raised in a particular faith.
Nominating a guardian can be a tough decision. You should choose someone who is respectful of your wishes and who you trust to make decisions in the best interests of your children. It is a good idea to talk to your preferred guardian to make sure they are comfortable with taking on that role if required.
At the same time as making your Will, it is wise to put in place an Enduring Power of Attorney, which will nominate someone who can make decisions for you in the event that you become incapacitated in the future. This will mean that someone can decide where you live and what medical treatment you receive, as well as being able to deal with your finances to ensure that your children’s needs are provided for while you are unable to act for yourself.
Estate planning is an essential part of caring for your loved ones. Anyone who has children, or is planning for children, should have a Will and Enduring Power of Attorney.
Rebecca Tetlow is an Accredited Specialist in Wills and Estates Law (NSW) and a Senior Associate at Dobinson Davey Clifford Simpson
phone (02) 6212 7600 [email protected], www.ddcslawyers.com.au
