Confessions of an estate lawyer

Fiona Shilton Estate Lawyer

Confessions of an estate lawyer – why my will is a work in progress too

As a busy mum and business owner, I am guilty of putting things off that I know should be done. And, like you, my estate planning is on my to-do list. Also like you, my family is my top priority. 

Let me tell you a little about my crazy rag-taggle bunch.

I live with my husband and three small kids. I also have two kids from a previous relationship who are now over 18 years of age, living elsewhere and (gasp!) financially independent.

We live on a bit of land in the Adelaide Hills with a dog, a rabbit and six sheep who are expecting lambs any day now. My daughter Pearl wants chooks too but I’m putting her off in case Fantastic Mr Fox comes calling. So I’ve told her to be content with the ducks that land in our dam from time to time. Close enough.

Like you, my family are my life. I want to look after them – not just during my lifetime but also after I die. This means I need to give my estate plan an overhaul.

First things first. Super

This week I posted a Binding Death Benefit Nomination Declaration to my super fund. 

This was important because the Binding Death Benefit Nomination that was in place meant that my two adult kids would lose a sizeable chunk of my superannuation death benefit to the taxman. That’s not cool.

Next thing. Power Of Attorney

I have revoked my old power of attorney and made a new one appointing my husband and a lawyer friend to take over, maintain or wind up my legal business if I can’t work anymore. 

By appointing my own attorney, I have ensured that my clients will be looked after by someone who I trust and who is aligned with my vision and values.

Third. Advance Care Directive

I confess I have only just prepared an advance care directive for myself. I’m a bit like the hairdresser that finds it hard to find a colleague to cover her greys! Too busy making everyone else feel amazing. 

By preparing my own advance care directive, I have set out my own wishes, preferences and instructions for my future health care, living arrangements, personal matters and end of life plans. 

Fourth. Will

I have made a new will. In doing this I have had to reconsider several aspects:

  • New executors given that my life is more complex: I operate my own business, have adult children from a previous relationship 
  • My current non-estate and estate assets, with debt and other liabilities
  • My digital assets including my online business assets, email accounts, social media, PayPal or bitcoin, and other stored information such as photographs and video
  • How I want to distribute my estate noting that my eldest children are now adults and not automatically entitled to a share of my husband’s estate if I die first
  • Any tax impact to my estate and my beneficiaries
  • Measures I want to take to protect my children’s inheritance from themselves or third party claims
  • Including a discretionary testamentary trust in my will for certain beneficiaries
  • My wish to be cremated and ashes scattered amongst the trees
  • Care for my dachshund Charles and rabbit Mary
  • Appointment of a testamentary guardian(s) to take care of my small kids jointly with my husband if I die first

Fifth. Life Insurance.

Now, I’m no saint. My estate plan is a work in progress – and my Life Insurance more so than the rest. But it’s my New Financial Year resolution to make an appointment with a financial planner to review my life insurance cover, to make sure that I look after my family financially if I die or suffer a total and permanent disability.

Sixth. My Instruction Manual for Executors 

This is a document that does not form part of my will but feels important to me. It sets out some of the finer details around my wishes. It will have all of the information that my executor will need to administer my estate such as a family tree, contact list, suppliers, usernames and passwords. It will also include information about special items which I’d like to be passed on to special people.

Seventh. Digital Asset Plan

My digital asset plan will actually form part of my Instruction Manual for Executors but deserves special mention here because my digital assets form part of my estate and I don’t want them to be lost forever. 

My online life is all over the place. Some of it is stored as snippets in OneNote. Some in an online password manager. The rest in my inbox, OneDrive and website favourites list. My gorgeous farmer husband has never touched my laptop and my executors would need to be digital detectives to piece together my footprint, when I’m sure they have better things to do. 

So, I’m compiling a list of my digital assets which might include the following:

  • The devices themselves such as computers, external hard drives, tablets, smart phones, e-readers and other digital devices. 
  • Information stored electronically, whether on a physical device like a hard drive or stored online in the cloud.
  • Any online accounts including email, social media, video gaming, online storage accounts, websites, blogs and online photo or video sharing accounts
  • Domain names
  • Intellectual property including copyrighted materials and trademarks

Once I’ve done this I am going to write down my instructions for each item on my list of digital assets explaining what I would like to happen to each asset. Job done.

Eighth. Pre-paid funeral

It’s my wedding anniversary this week. Maybe we should celebrate 11 years by visiting the local funeral director. How romantic.

A pre-planned funeral will give me an opportunity to choose the type of funeral service I want and how much I want to spend. It will save my family anguish at a later time and also make everyone aware of my wishes. Plus this way I get to be involved in the party, even though I’ll miss out in person.

Lastly. Estate Planning Conference

Most importantly, I’m going to bake some apricot jam cockles, invite my older kids over, sit down with them and my husband and discuss what will happen if I die first. I want to make sure that the people I love are OK after I die. I want to make sure they stay friends, rather than falling out over some unavoidable estate dispute. 

This is the hardest one on the list. It’s going to be tough, and frankly I’m dreading it. But I know it’s the kindest, bravest thing I can do. Wish me luck.

 

 

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