Succession planning is about planning for what happens to your property, your business and ultimately your family, when you can no longer can, either through incapacity or death.
The purpose of a well structured succession plan is to map out how your affairs are administered when you no longer can. And we’re not just talking about the distribution of assets following your death, because any succession plan should consider and range of factors such as:
- Who will make decisions regarding your healthcare in the event you are incapacitated through accident or illness
- Who can make decisions in respect of your business when you no longer can
- How your property and assets will be dealt with following your death
- Which professional advisors should be consulted to ensure your plan is robust and meets the needs of you and your loved ones
- How best to structure your affairs to ensure your dependants are cared for over their lifetime
- Who will you trust to administer your affairs and carry out your wishes
This can be an involved exercise when you consider the complexities of your life and so it is important to have an expert in succession planning guide you and your family through the process.
To talk with one of our experts in succession planning get in touch with us today.
Identify, Plan & Discuss
The first step in your succession pathway is to assess the elements needed in your personalised succession plan. Here we identify the elements, discuss your wishes and the options available to you and begin to build out a framework for your succession plan.
Think of it like a discovery session where we begin with a blank canvas, mind-map the various scenarios and come up with a game plan for what succession looks like in your unique circumstances.
At this stage of the planning process we seek to capture all your property, assets and business holdings, identify your dependants, and describe how the estate will provide for those dependants when you no longer can.
Ideally, we will seek to involve your key dependants in this critical decision making exercise.
One of the most important decisions you’ll make early on your succession pathway is the appointments of those responsible for carrying out your wishes.
In the context of your succession plan there are two key appointments to consider – who will be the Executor of your will, and who will be your Power of Attorney.
The key function of an Executor is to carry out your wishes following your death. Specifically, they are responsible for managing the estate within the terms of the Will and to protect the estate.
A Power of Attorney is often appointed to manage your affairs on your behalf whilst you are still alive. This may be restricted to managing only your financial affairs, or expanded to include making decisions about your ongoing healthcare.
It is important that you implicitly trust anyone you appoint to either of these important roles as they will be charged with carrying out your wishes when you are no longer able to.
Out expert succession lawyers can help guide you through this decision making process.
Make A Will
Making a valid Will is the next step in your succession pathway. It is an exercise in pulling together the decisions you have made in the planning phase, including determining key appointments, and constructing a document which clearly reflects your intent and wishes.
For a Will to be considered valid you must:
- Have testamentary capacity, which means you are over 18 years of age and you understand what you are doing
- Commit to written form your intent and wishes
- Have the document signed in the presence of two witnesses
Our team of Wills experts can guide you through that process to ensure you have a valid Will.
Your Will should be considered a living document. As your life circumstances change so too should your Will. Not every change in life circumstance requires a change to your Will, but regular reviews should be conducted.
Wills should always be reviewed when a major life change occurs such as:
- If you separate, divorce or remarry, including de-facto relationships
- If you have more children
- If you acquire or dispose of major property and assets
- If you acquire or dispose of a business
- If you acquire or dispose of significant liabilities
- Where a beneficiary dies or becomes incapacitated
- If your Executor or Power of Attorney dies, or becomes incapacitated
- Where you simply change your mind and wish to provide for your loved ones in a different manner
Of course, our expert Wills Lawyers can guide you through the process, ensuring your Will remains valid and up to date.
Major Life Event
A major life event is typically a trigger for commencing the administration of a Will, an Advanced Healthcare Directive, or Enduring Guardianship.
Major life events obviously include death in the case of administering your Will, but could include a protracted illness or accident causing incapacity, either temporary or permanent where either, or both, an Advanced Healthcare Directive or an Enduring Guardianship have been set up.
Where a major life event occurs our team should be contacted to initiate the process of carrying out your wishes.
Probate, or more specifically, Grant of Probate, is a legal document provided by the Court which authorises the Executor of a Will to manage the Estate of a deceased person in accordance with the Will.
Depending on the size, nature and value of assets held by the estate it may not be necessary to apply for a grant of probate.
Where probate is required the application should be lodged with the Court within 6 months of the date of death of the deceased. Applications outside of that timeframe will require explanation as to the delay.
To avoid unnecessary delays in executing the Will our team should be involved in the process as early as possible.
When a person passes away the Executor of the deceased’s Will is charged with administering the Will.
Administering the Estate will include:
- Identifying all assets and where applicable having them valued
- Identifying all the debts of the estate and settling those debts out of the estate
- Facilitating funeral arrangements of the deceased
- Claiming life insurances and death benefits
- Applying for the Grant of Probate
- Taking or defending legal action on behalf of the Estate
- Distributing remaining assets to beneficiaries of the Will
Our expert Estate Lawyers will assist you in the administration of the Will and guide you to ensure the wishes of the deceased are carried out in a timely and effective manner.
The final distribution of the Estate to beneficiaries is the final step in the succession pathway.
Once Probate has been granted, the Executor should publish a notice of intended distribution, following which the assets of the Estate can be distributed after extinguishing the debts of the Estate.
The Executor is responsible for keeping proper records of all receipts, expenses and assets which have been transferred to beneficiaries.