Reviewing and updating your estate planning documents
Why should you review your estate planning documents?
It is important to review your estate planning documents regularly to ensure that they remain valid and also, to ensure that they are a true reflection of your wishes.
When should you review your estate planning documents?
We recommend that you review your estate planning documents annually. However, you should also review your estate planning documents if a significant event happens in your life or in the life of one of your beneficiaries. For example:
- a new address
- a death in the family
- any illness or loss of health suffered
- a change to your marital status or family situation
- if you have named a charity as a beneficiary in your Will, that no longer exists or has changed its name
- if you have included beneficiaries by name, such as your grandchildren or nieces and nephews, and there are now additional beneficiaries that you would like to include who were born after the date of your Will; and
- if you have made specific gifts (particularly real estate) in your Will which has been sold or for which ownership has changed.
What documents should you review?
When reviewing your estate planning documents, you should review the following documents:
- Enduring power of attorney
- Advance health directive
- Death benefit nominations for your superannuation
- Any documents relating to business succession
- Trust deeds and any subsequent deeds of variation
- Mutual Will documentation
- Statements of wishes
- Lists of specific gifts
How can you update your Will?
There are two ways in which you can update your Will:
- You can complete a new will which will have the effect of revoking any previous Will that you have made; or
- You can complete a document called a codicil. A codicil is a document which is separate to your Will. It either adds additional provisions to your current Will or changes existing provisions in your current Will.
Attempting to make changes to your current Will by handwriting on the document for example, could:
- see your Will invalidated;
- may lead to your wishes not being carried out; or
- to challenges against your estate being made.
Your circumstances, the types of changes required and the provisions of your existing Will, will all factor into which approach is preferred. You should seek legal advice to assist you in ensuring that you make the best choice for you.
Is an old style, pre-1998 Enduring Power of Attorney (Queensland) valid?
The short answer is yes, if it is correctly completed. However, pre-1998 Enduring Powers of Attorney allow you to appoint an Enduring Attorney to manage your financial affairs only.
Importantly, on 1 June 1998, the Powers of Attorney Act 1998 (Qld) commenced in Queensland. The Act brought with it – new Enduring Power of Attorney forms and more importantly, allowed Enduring Attorneys broader powers that the previous law had.
In Enduring Powers of Attorney made after 1998, Enduring Attorneys can be appointed for financial, personal and health matters. In order to take advantage of this expanded provision in the legislation if you have an old style, pre-1998 Enduring Power of Attorney document, you should consider updating it as soon as possible.
Do you need to update your death benefit nomination for your superannuation?
You should review your nomination as part of your annual estate planning review.
Whether you need to update your nomination will depend on a number of factors. If your wishes change or if your circumstances change, you may need to change your nomination.
In addition, one certain type of nomination called a Binding Death Benefit Nomination generally expires after three (3) years and so it is particularly important to ensure that you review this type of nomination to ensure that it does not expire. It is also important to check with your superannuation fund what type of nomination you have in place and if applicable, when your nominations expire.
Where should you keep your Will and other estate planning documents?
Firstly, it is important to keep your Will and other estate planning documents together. This will make things easier for your executor and help to reduce the risk of your important documents getting lost.
Many clients choose to keep their estate planning documents at their lawyer’s office in the safe custody facility and retain copies at home for their information. Others client prefer to keep their documents at home or even at the bank. Wherever you decide to keep your estate planning documents, you should advise your executor and Enduring Attorney of their location in case they are needed in the future.