Whilst a will is one of the most important documents you can sign, sometimes the mechanics of actually implementing your intentions are overlooked. As part of the estate planning process, not only should you complete a will and enduring power of attorney, you should also consider whether leaving a statement of wishes may be appropriate in your circumstances.
A statement of wishes sits alongside your will and provides instructions to your executors (and/ or trustees of any trusts you may establish under your will) about various matters that may not be specifically dealt with by your will.
Whilst a statement of wishes is not a legally binding document (unlike your will), it does provide useful information to your executors who may, at times, struggle to understand your true intentions expressed in your will. It allows you to identify the issues important to you and gives guidance to your executors, trustees and beneficiaries as to these issues and the general administration of your estate.
You are able to include a variety wishes in your statement, some of which may include (but are not limited to):
1. Funeral Arrangements and Organ Donation
You are able to let your executors and family know how you wish your body to be dealt with (i.e. burial or cremation). Your statement can even go so far to name the location site of your burial and the content of your funeral.
You are also able to specify whether you wish to be an organ donor and any wishes in this regard
2. Maintenance of minor children
If you have minor children, you may wish to specify to your executors/ trustees/ guardians how to raise your children and identify the manner in which you wish their inheritance to be spent. These issues can include:
- >Which primary and high school your children are to attend
- >Which family members or friends you wish your children to have an ongoing relationship with
- >Which sporting activities your children should be involved in
- >The contact details for your children’s medical practitioners
- >Any other information which you believe is important in raising your children
3. Distribution of certain assets
You may have a number of sentimental items that you wish to be distributed to certain people (i.e. jewellery, antique furniture and/ or items that have been in the family for years). You can specifically name these items and who you wish they be distributed to.
4. How to deal with certain assets that do not form part of your estate
You may have controlled certain assets in your lifetime that do not actually form part of your estate. Such assets include any trusts, superannuation and overseas entities etc.
In the case of trusts, you are able to express to the trustee how you wish the income and capital of the trust to be dealt with and who you wish for it to be distributed to.
5. Other matters
The names of advisors (i.e. lawyer, accountant, bank manager) and family friends are also useful information for your executors when administering your estate.
It may also be helpful to specify the location of important documents or records.
Whilst a statement of wishes is not a legally binding document, it does, to a degree, morally persuade your executors to act in accordance with your wishes. In most circumstances, a statement of wishes can prove quite useful to your executor.
Contact Leanne Matthewson, Alan Cumming or Katherine Marshall in our estate planning team if you would like more information.
Prepared by Katherine Marshall
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
