Letter of Wishes

Making a will is one of the most important things you can do to ensure that your loved ones are properly provided for in the event of your death.

Obviously, the primary purpose of a will is to ensure that your estate will pass to your intended beneficiaries.

However, there are many other issues that can, and should, be considered when making your will. Some of those issues might be things in relation to which you cannot, or may not wish to, give legally binding directions.

As part of the estate planning process, you can make a document called a letter of wishes, to be read in conjunction with your will.

Unlike your will, a letter of wishes is not a legally binding document. However, it does give you the ability to express wishes or preferences on issues which are important to you, to guide your executors and beneficiaries in the administration and distribution of your estate.

The purpose of this article is to provide you with information about some of the issues you can deal with in a letter of wishes.

Arrangements for your funeral

If you have any particular wishes regarding your funeral, we recommend that you include them in your letter of wishes.

This could include a statement of your wishes regarding burial or cremation, or the location, religious denomination and content of your funeral service.

Organ donation

If you have any particular wishes regarding organ donation, you should consider specifying those wishes.

This might involve expressly stating that you do not want to be an organ donor, or that you are an organ donor, or that you only want your body or organs to be used for particular purposes.

We would be happy to discuss your wishes in this respect as part of our estate planning work for you

Guiding your executors and beneficiaries

The role of an executor is to administer your estate following your death. This involves collecting your assets, paying any debts owed by your estate, and distributing the estate to your beneficiaries in accordance with the terms of your will.

Your executors will ultimately have the final say as to how your estate is administered.

However, you can, in a letter of wishes, express your preferences about issues such as:

  • who should receive particular items of sentimental value;
  • whether particular assets of your estate should be sold or, alternatively, transferred to beneficiaries in specie; and
  • how you would like your beneficiaries to use their inheritances.

Guardianship of minor children

If you have a child or children under the age of 18 years, you should consider appointing one or more guardians in your will to look after them in the event that you die before they reach adulthood.

While a guardian appointed in your will would ultimately have the final say in how your children are looked after if you die before they reach adulthood, you can specify your wishes as to their maintenance, education and advancement in a letter of wishes.

This might include expressing in your letter of wishes, your preferences as to:

  • the schools you would like your children to attend;
  • the extra-curricular activities in which you would like your children to participate;
  • the names of your childrens’ regular doctors and dentists;
  • details of any medical conditions of which your guardians need to be aware; and
  • any other details you believe are important to the raising of your children.

We would be happy to discuss your wishes regarding the guardianship of your children as part of the process of preparing your will.

Control of trusts and self-managed superannuation funds

If you have a family trust or a self-managed superannuation fund, you will need to consider how it should be managed in the event of your death, and by whom, as part of the estate planning process.

Your letter of wishes can set out your preferences as to how you would like your family trust or self-managed superannuation fund to be managed following your death. Your preferences will not actually bind the trustee, but they will provide guidance as to what you would have wanted to happen.

If you would like to make a letter of wishes, please contact Clayton Hellen of our office on 07 3009 8458 or c.hellen@rclaw.com.au.

Clayton Hellen

Senior Associate

Brisbane 07 3009 8444
Email c.hellen@rclaw.com.au

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Supervising Partners

Gavin McInnes

Partner

Brisbane 07 3009 8444
Sydney 02 9307 8900
Email g.mcinnes@rclaw.com.au

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