Death, Dying and Estate Planning

Death, dying and estate planning.  Only one of these three can be avoided.  In fact, at least 41% of Australians have avoided preparing a will.  Some of those 41% think they expect to make one, but they’re not there yet. Yet dying is one thing all human beings have in common.

Dr Cheryl Tilse from The University of Queensland’s Faculty of Health and Behavioural Sciences said Australia had one of the highest percentages of people with legal wills. “Yet it is concerning that many young adults think there is plenty of time in the future and do not consider wider implications,” Dr Tilse said. “Wills are under-used by young people and viewed quite narrowly. Some people believe they are only for those with significant possessions. However there are other extremely important functions of a will, including nominating guardians for any dependents, confirming funeral arrangements and appointing the will’s executors.”dying, death, estate planning, wills

Having the Last Word is a four year study which gives the most current data on the prevalence of Australian wills.  Under the Australian Research Council Linkage project, UQ worked in partnership with the Queensland University of Technology, Victoria University and seven public trustees to complete this study.  The findings of this study show that Australians appear to be ahead of the US and the UK in terms of percentage of people who have made a will, but there are many who still need to.

Why You Should Start Thinking About Dying

The first step on the road to good estate planning is to think about dying. What do you want to happen when you die? In very simple terms, estate planning is planning in advance who you want to have your material possessions when you die and how to do that most effectively. But good estate planning encompasses much more than that.  It can include your wishes for end-of-life care or instructions on your care if you become disabled, naming a guardian for any young children, organising a trust to care for your children if you die, deciding tax-effective ways of passing on your money to loved ones or whether you want to be buried or cremated. The list can be quite comprehensive and a little overwhelming, but step by step with a specialist in estate planning should help to make it clear and understandable.

Jeena Cho, a lawyer who is also interested in mental health and mindfulness, interviewed several estate planners as she began a series of writings about death and dying.  She chose them to glean from them different facets of the legal end of death.  These experienced professionals have dealt with many people over the years. Here is some advice they shared about their experiences of people and estate planning:

Death happens to everyone—some, sooner than others. You are not immune. As cliché as it is, it is true that tomorrow isn’t promised. So, just because you aren’t ready to accept the fact that one day you will die, that it will happen, you should still be prepared—if not for you, for your loved ones who will be faced with making decisions for you.

The first obstacle clients must work with in developing an estate plan is the mixed emotions regarding property transfers upon their death. Without an estate plan your assets may go to unintended beneficiaries with unnecessary tax and other liabilities upon your death. Some clients resist the process, although even coming to my office is a big step in estate planning which demonstrates a willingness to begin a dialogue. Many people do estate planning out of obligation, often fueled by a spouse or other interested family member. Others don’t share this sense of obligation and don’t want to be bothered. Some clients tackle estate planning head on and report breakthroughs in family communication and a great sense of accomplishment when the documents are finally signed.

dying, death, estate planning, willsThinking about dying can be confronting and emotional.  Thinking about parting from your loved ones and all the possessions that you hold dear can be very difficult.  Sometimes it is people’s greatest fear. But thinking about those loved ones who are left behind, picking up the pieces when you are gone, can be a great catalyst for some to start estate planning.

If you’ve ever lost a loved one, you know the pain that comes along with it. The loss alone is heartbreaking. Add in the decisions leading up to the death. Electing a person to make life-altering decisions. Selecting a funeral or burial or cremation location. Deciding on a memorial or a viewing to remember them by. Paperwork, attorneys, bills. It’s emotional and stressful. By creating an estate plan ahead of time, you ease the chaos when you do die. Be self-less. Create an estate plan.

Most estate lawyers wisely encourage their clients to communicate their wishes.  This is key.

The road to solid estate planning is paved with communication. Get your trusted loved ones and advisors involved. The fewer surprises to your survivors after your death, the less chance there will be confusion or disputes. An estate plan is a great idea regardless of your net worth.

Some people get worried that once they have a will and estate plan that it is set in stone.  This doesn’t need to be the case.  Good estate planning means making plans and then planning for change.

Bryan Mitchell, Accredited Specialist in Succession Law (wills and estates) recommends checking your estate planning every five to ten years or anytime there is a significant change in your circumstances. He also advises clients that when making or changing a will it is important to repeatedly ask the question “what if?”  You need to try to consider all possible subsequent and significant eventualities which may occur lest you later lose the mental capacity to make or change your will. Therefore, a well-drafted will takes into account that people may die before you, that more children and grand-children may be born and that, when you do die, you may not own what you own now.

A common mistake Bryan sees frequently is appointing executors who aren’t up to the task of administering an estate. These are those persons responsible for administering your estate after your death.  This is important because any executor or executors appointed by you may not be living when you die, may be incapacitated or may simply refuse to act as your executor/s.

Finally, wills should be clear, precise and easily understood. Should a will be unclear or confusing, it must be taken to court for interpretation by judge. This is a costly and time-consuming process. It is often home made wills that are unclear, confusing or don’t cover everything they need to which require intervention by the court. It is much easier to seek advice when drafting a will to ensure you have covered everything you need to consider.

If you would like to speak to one of our knowledgeable and experienced estate lawyers then please contact us for a free, 10-minute phone conversation.  They would love to help you with your estate planning.  Why not start the journey today!