Estate planning can be a complicated task, with many questions and concerns arising during the process. To help you navigate through the complexities, we’re bringing a four-part series on Estate planning.

In Part 1* of this series, Lucy Percy*, Founder and Principal Lawyer, Head and Heart Estate Planning provides insights on storing a Will and basics of appointing trustee companies.

Q: Where should I store my original Will?

A. The three most common options for clients to store their Will are:

• With the lawyer
• At home; or
• At the Supreme Court in your state

With the lawyer

Most of my clients elect to use my complimentary storage facility, and I believe this is the best approach for most people. Storing your Will with your lawyer means that it should not get damaged or go missing. 

There are strict requirements for how lawyers store documents, but also how they must maintain a deed register of all documents that they hold on behalf of clients. If concerned, you should ask your lawyer where they store their deeds.

As a sole practitioner, if something happened to me (like incapacity or death) the Legal Services Board of Victoria (or the respective state regulator) would approve another lawyer to step in and manage my practice which might include the sale to another firm or winding up.

In each event, my clients would be notified. If a client missed the notification and they (or their executor) couldn’t find their lawyer the state bodies such as the Law Institute of Victoria and Legal Service Board (and the state equivalent) should track the sale, or merging of firms.

It also means that when you, or your attorney, or executor need to access the documents a high level of due diligence is done before releasing documents. Thus, protecting privacy, but also the release to individuals who may lose or destroy them.

At home

Storing a Will at home might be appropriate for people who have not engaged a lawyer, and, therefore, have no access to a professional storage option. If a will is stored at home, it should be in a safe, or in a fireproof document envelope.

The location that you have stored important documents should be communicated to at least one other person. Ideally a copy should also be provided to someone else, although it is hard to maintain privacy while having a copy on record without using a lawyer.

It is a very real issue that Wills and Power of Attorney documents stored by clients personally go missing. Whether that be because the location is not shared adequately, or a rogue family member or friend discovers it, is not happy with the contents and removes or destroys it. Whilst it is a remote risk, it is certainly a risk that a beneficiary who would inherit more if you didn’t have a Will, or under a preceding will could do this.

The Supreme Court

You can also contact your Supreme Court and enquire about the process for your Will to be stored with the court. It is an incomplete solution in the sense that it is not an appropriate storage solution for an enduring power of attorney.  But it does offer certainty that the Will won’t be lost, as every application after death for Letters of Administration (where there isn’t a Will) or Grant of Probate (where there is a Will) needs to include a search of the Supreme Court deeds and register.

As a bonus piece of advice: for clients with trust deeds, you should also note where the original is located and store it with the Will or in an equally secure manner.  Having access to the original trust deed, not just a copy is critically important.

Q: What about trustee companies? Are there any you recommend and why?

A: I love this question, and the reason is that it is a big reality and often a barrier to clients seeking advice that they don’t have anyone personally close to them as a family member or friend who would be suitable to act as a professional executor, trustee, or indeed attorney (if we are contemplating incapacity but still being alive as well).

There are many reasons why it would appropriate for a client to appoint a professional, and in some cases I see these appointments being overused and eligible children being bypassed because the lawyer or trustee company suggested it at the time. Other times I see it being underused, such as where we can reasonably anticipate that there will be an estate dispute, where children cannot get along, or there are complex business or asset structures that mean a professional with sophisticated knowledge will ensure better outcomes.

That said, in my ten years as a lawyer I have never appointed a trustee company for a client.  Instead, I’d like to share what I recommend to my clients who are in this situation.

Family or friends

We firstly explore the option of the family member or friends in their lives who may be appropriate.  If there are some concerns about certain aspects of the role that they will need to perform, we consider all the conditions or limitations, or strategies such as appointing them as a co-controller with a professional before we disregard and pass them over altogether. 

A child may not be suitable to manage your money on their own (as attorney or executor), but we can discuss strategies where we enable them to perform the role to the full extent of their ability. 

Perhaps that means the family member or friend are an attorney acting together with a professional; that way they can be the one who takes you shopping, or to the bank, or makes Centrelink calls with you, or clears and sorts your home and personal possessions after death and organises your funeral.

These are low risk tasks that would be expensive if the sole domain of a professional.  But maybe the large financial decisions must be done jointly with the professional.  This will ensure that you have someone “on the ground” and who knows you working in your best interest, together with a professional as the decision maker with the skills that will protect against a client’s greatest concerns.

I believe that one of the barriers to people starting estate planning when it is likely that they will need to appoint a professional, is that they feel shame or sadness that they don’t have the support of family or friends that they deserve as they age. They also do not want to burden others. If the concern is about being a burden, I suggest that before a family member or friend is passed over, a scope of work is determined with the estate planning lawyer, and the proposal is put to that person.

I am especially in favour of paying attorneys and executors for their time if appropriate in the circumstances, and if cashflow is an issue discussing with the attorney about being paid for their role from the proceeds of the estate.

Appointing professionals

For clients who do need a professional, or a mix of personal and professionals acting together instead of using a company I am familiar with lawyers who frequently accept attorney and executor appointments (and are often chosen by the courts to act as well) and allow my clients to choose who they would like an introduction to. Most of the lawyers I am familiar with offer my clients a free 30-60 minute meeting to learn about their personal circumstances, and understand why they want and need a professional before agreeing that there is a good fit (or otherwise) and allowing us to appoint them in the documents. The benefit of this to clients is that they can meet the professional and convey their wishes and values to them, they can be assured that when the time comes for them to act that they know who will be acting (with contingencies of course). 

Lawyers who have built this as part of their practice have charging systems that are always compliant with the court requirements, and are not commission based (which penalises the richer clients to subsidise the smaller estates), and they maintain case loads that will allow them to give you and your matter the attention required at the time.

The key takeaway for readers is that if they are delaying putting in place an estate plan because they are not confident of who to choose, that your estate planning lawyer should be able to support you. There is a whole spectrum of solutions between “appointing your next of kin and hoping for the best” vs “appointing a trustee company and paying commission”.

*Lucy Percy recently presented a webinar Estate Plan and Protect: why you need more than a Will here  for AIA members. Members can view the webinar here

Non-members can access Part 1 of the series but the remaining content will be exclusively for members. In the next three parts, Lucy Percy and Tim Henry, Financial Planner and Director, Aspire Planning will jointly answer some key questions on Estate planning. Part 2 will cover: Testamentary Trusts – why they’re a star estate planning strategy, and the importance of labelling the purpose of your Investments.

If you are interested in Estate Planning but not a member, join now and get immediate access to the whole of our interview series and webinar content.