General Estate Planning issues (Wills, PoA, AHDs)

[Milboo]

Stop being stubborn John.Sometimes you do have to spend some money so things will be protected in the future.Again if you die with the shares in your name without having a will your wife will never get those shares.The Public trustee will sell them and it will be at market and unlikely to get what you think they are worth.then your estate will be charged a fee for that "service".Your wife will be left with very little of what is in your name
There are wills for people who hate spending money but get advice on how to do it by someone who has knowledge of the process.

That’s not correct. If you die intestacy, then the legislation prescribes the order in which your estate is distributed and the shares would be transferred according to that hierarchy. If an executor sold them then arguably they are not acting in the best interest of the estate.

 

[Renato1]

Writing your (or other people’s wills) based on one prepared for you is never ever a good idea.

There is a reason you spend a fair chunk of time learning wills, trusts and estates in law school.

As I said - for when the distribution is simple (that is, pretty much based on what the law would have done if one died without writing a will) then writing a will is pretty straightforward. The deviations from that simple scenario are where legal advice had best be sought.

Best to write that simple will, than let the government get involved in the subsequent exercise when the will hasn't been written.
Regards,
Renato

 

[QF WP]

That’s not correct. If you die intestacy, then the legislation prescribes the order in which your estate is distributed and the shares would be transferred according to that hierarchy. If an executor sold them then arguably they are not acting in the best interest of the estate.

The law of intestacy are there if you die with out a Will (you are said to die "intestate"). Generally, either the Public Trustee in the deceaseds' State of residence, or a close family member (if there is one), can apply to the Supreme Court for Letters of Administration to manage your Estate.

 

[QF WP]

Right, you'll all notice these posts have been hived off the General Medical thread. That was fun

I'll go through and see if there is some general information I can add here to assist in the issues posted to date. Whilst I am not a Solicitor, as a Certified Financial Planner I can give areas of consideration but will never give recommendations. I have had a number of clients, friends and family who I have seen first hand have issues over the past 30+ years.

For those who may not be aware:

PoA = Power of Attorney
AHD = Advanced Health Directive.

 

[Solid]

There’s already a number of posts by johnk which indicate he needs specialist advice or the result will be messy.

Of course whether he sees the value in that advice is another question.

 

[Pushka]

Isn’t it a bit weird that JohnK is the author of this thread and is the one person here it seems who hasn’t done this?

 

[opusman]

Isn’t it a bit weird that JohnK is the author of this thread and is the one person here it seems who hasn’t done this?

Same may say JohnK is a bit weird (not me of course!)

 

[QF WP]

Isn’t it a bit weird that JohnK is the author of this thread and is the one person here it seems who hasn’t done this?

Well, he was the first person who asked the question about Wills, so by that virtue, became the OP.

 

[Pushka]

Well, he was the first person who asked the question about Wills, so by that virtue, became the OP.

Well, all he was concerned about was his FF points.......which is kinda appropriate given the forum. True AFFer.

 

[JohnK]

Isn’t it a bit weird that JohnK is the author of this thread and is the one person here it seems who hasn’t done this?

I didn't create this thread.

I had a general concern of how my wife can get back to Thailand and I received all sorts of advice. Oh and now we have a thread where people can lay the boot in. Excellent.

Nothing is as easy as people think. That's a very simple concept.

 

[tgh]

I don't think folks are laying in the boots at all.
I read lots and lots of people expressing great concern and trying to be helpful.

 

[QF WP]

Correct @JohnK. The legal complexity of Wills grows with the number and relationship of beneficiaries, their age (thinking of beneficiaries who are minors) as well as their capacity (those who are disabled, for example) and Guardianship issues. One must also consider current or future issues (bankruptcy or relationship breakdowns of self as well as beneficiaries). Finding a trusted person who is willing to become the Executor/Executrix of an Estate (or a Guardian of children) is also no mean feat.

Further layers of complexity are added when one holds assets in different jurisdictions (States of Australia, or internationally) and how the assets are held (sole, joint tenants or tenants in common, plus Trusts, Companies etc). Let's also consider that superannuation assets can be dealt with outside of the constraints of an Estate, where a valid beneficiary nomination has been made.

I'm sure that there are particular issues that I have missed. It's not easy for any person who hasn't had any experience in the area, to gather and retain knowledge easily then feel they can easily find the correct person(s) to help them, within financial constraints.

 

[Pushka]

I didn't create this thread.

I had a general concern of how my wife can get back to Thailand and I received all sorts of advice. Oh and now we have a thread where people can lay the boot in. Excellent.

Nothing is as easy as people think. That's a very simple concept.

Well, your first statement was upfront. “I don’t have a will”. If that isn’t going to raise red flags then nothing will. With a will and should something happen, getting back to Thailand would be very simple.

 

[QF WP]

But it's not @Pushka. It is likely that a person with a reasonable sized Estate will need to have their Executor/Executrix obtain Grant of Probate and may need that stamped in multiple jurisdictions (where there are assets) before the Executor/Executrix can deal with the Estate properly and call in assets, pay debts and pass on the net assets in accordance with the bequests in the Will. Let's not even start with Testator Family Maintenance claims that could further mire the Estate in expensive and time consuming legal arguments.

Not even the superannuation claim can be guaranteed to have clarity until the Trustees are satisfied they can pay the claim to the righful beneficiary.

 

[QF WP]

Let's look at another issue that can arise. What happens if parents die at the same time (same accident), or it can't be ascertained (even under Coronial enquiry) who was deemed to have died when (ie. who died first).

I’ve found some interesting articles about it for edification:

Wills & Succession Planning upon simultaneous deaths | MacDonnells Law

Wills - What happens if I die at the same time as my partner - WGC Lawyers

 

[Pushka]

But it's not @Pushka. It is likely that a person with a reasonable sized Estate will need to have their Executor/Executrix obtain Grant of Probate and may need that stamped in multiple jurisdictions (where there are assets) before the Executor/Executrix can deal with the Estate properly and call in assets, pay debts and pass on the net assets in accordance with the bequests in the Will. Let's not even start with Testator Family Maintenance claims that could further mire the Estate in expensive and time consuming legal arguments.

Not even the superannuation claim can be guaranteed to have clarity until the Trustees are satisfied they can pay the claim to the righful beneficiary.

Well yes but there are easy ways to set up an account with a good sum of money in it thereby avoiding any probate on those amounts. And that would give easy access to Thailand if that was the desire. The will can then take care of the rest without having to worry about whether FF points were accessed.

I’ve been Executor for 3 Estates involving shares and property transfers and other assets so I understand all the complexities of Probate. Having a Will makes probate as smooth a process as possible. Not having a will delays that process and gets other parties involved that ordinarily we’d slam the door shut if they came calling.

Let's look at another issue that can arise. What happens if parents die at the same time (same accident), or it can't be ascertained (even under Coronial enquiry) who was deemed to have died when (ie. who died first).

I’ve found some interesting articles about it for edification:

Wills & Succession Planning upon simultaneous deaths | MacDonnells Law

Wills - What happens if I die at the same time as my partner - WGC Lawyers

It’s not even that simple. In order to inherit, here in SA anyway, you have to outlive the person by 30 days.

 

[QF WP]

True, an account can be held in each spouses name (thus the surviving spouse has funds that can be accessed), but how much is enough for the intervening period between death of partner and Probate being granted (considering loss of household income plus any capital needs). Who knows which of them will die first? Apart from a terminal condition, where an estimate of time may be given, I'm yet to find any couple who can say with any certainty, which of them will die first.

The 30 day survivorship clause is a standard in all Wills that I have seen...not seen one fail yet but I'm sure there are examples (like both being in accident, one dies and the other succumbs to their injuries within that 30 day period).

 

[Pushka]

True, an account can be held in each spouses name (thus the surviving spouse has funds that can be accessed), but how much is enough for the intervening period between death of partner and Probate being granted (considering loss of household income plus any capital needs). Who knows which of them will die first? Apart from a terminal condition, where an estimate of time may be given, I'm yet to find any couple who can say with any certainty, which of them will die first.

The 30 day survivorship clause is a standard in all Wills that I have seen...

I read somewhere it’s the law.

Well, surely this is an issue since time immemorial where assets are not jointly held. And even when they are if there are limited savings. People who lose a partner and who are not working (retired) face this issue all the time. Pension stops after one cycle leaving just the single pension. If not on the pension then you have to rely on personal savings esp where assets are not held in joint names. Insurance payouts won’t be immediate.

 

[JohnK]

Well, your first statement was upfront. “I don’t have a will”. If that isn’t going to raise red flags then nothing will. With a will and should something happen, getting back to Thailand would be very simple.

That was not an open statement for people who have no desire to assist to put the boot into my character which is what is happening right now.

For the record my only concern right now is how my wife gets back home if something happens to me. That's not as simple as you think. She relies on me for everything.

A will is going to have to wait until I'm ready and I don't want to face that right now.

 

[Pushka]

There have been many suggestions made to accomplish that primary goal. It’s up to you.