In the event of your death, are your affairs in order? Join Bonnie and Lily as they chat to Monique Dalais, a Wills & Estate Lawyer, about what documents and processes we need in place now. Learn how being prepared will help your family manage a sudden death and make wrapping up the estate process much easier for your loved ones.
The material in this podcast is provided for general information and educative purposes in summary form on legal topics which is current when it is first published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Appropriate legal advice should be obtained in actual situations.
- Download our free Decluttering Decision Tree
- Download our free Organising Cheat Sheet
- Sign up for our do-at-your-own-pace course: The Essentials Guide
EPISODE SHOW NOTES
Did you know we now have a YouTube Channel? We’d love you to check it out!
and welcome! I am Bonnie,
LILY: and I am Lily,
and this is Little Home Organised the Pod Cast dedicated to helping you
declutter, get organised and reclaim time for the things you love.
and welcome, this week we are talking about getting your affairs in order, we
are joined by Monique Dalais a Wills & Estate Lawyer with 30 years
experience to talk about how to plan for after your death
it may seem a morbid topic, making life easier for your loved ones after you
depart is a gift
things first, lets introduce our guest, so Monique Dalais is a lawyer and
notary public with over 20 years of legal experience in both large and smaller
commercial law firms across Australia.
In the last 10 years she has focused her practice on Estate planning and
estate administration. Monique is also a
minimalist at heart thriving best when her home is organised. Welcome Monique
Hi Lily, hi Bonnie nice to be here, thanks for having me.
a woman after my own heart being a bit of a minimalist
Yeah I definitely find having a clean space helps me have a clean head, so sure
LILY: Yes I can
definitely relate to that and we are privileged today to be recording actually,
a little insider info here in your home which we can both attest to is
beautifully organised and minimalist.
BONNIE: Yes it
absolutely is, it is that whole a clear desk is a clear mind thing and I can
see that you do that in your practice as a lawyer
Yeah I pride myself in it but it drives my family crazy.
that’s all right we were born to drive our families crazy
LILY: Yeah we
can relate. So today we wanted to get
into the topic of making sure we are prepared when the time comes that we do
pass and I think, I still think I am reasonably young
BONNIE: You’re not that young you are over the hill,
30 is the hill, you are over it
I’m not sharing my age
LILY: Its only
since having my son that I actually really started to think about getting my
affairs in order because I was like just being laissez faire about the whole
matter, feeling like oh if something happened to me I am sure you know my
husband will figure it out, but when I had offspring now, is that a weird word
to you use
BONNIE: It is
but that’s okay
having my own child now, you really need to be responsible, you need to get
these things lined up, but the question is what do you need to get lined up,
what are the documents and processes you should have in place to make sure that
your partner and your kids are cared for when you are gone
BONNIE: Well I
guess that is why we are here today to talk to Monique because Monique is the
lady with the knowledge to be able to shed some light for all of us of the
hillers who maybe haven’t gotten our affairs quite in order yet.
LILY: Do you
find it is commonplace that people actually get quite a way into their life
before even looking at getting a will sorted.
Well I think statistically over 50% of Australians don’t have a will.
BONNIE: So what
happens in that case if they pass and there is no will, what happens to all
their property and possessions?
Well there is legislation in each State in Australia that basically says what
happens to your estate if you have not left a will. So we call them the Rules of intestacy or Laws
of intestacy so that legislation actually sets out who receives your Estate, it
also means that someone has to apply to a court to be appointed as
administrator because if you haven’t got a will you haven’t appointed someone
who is specifically their task is to administer the Estate so 1: It will
involved a court application and 2: The law will set out what happens to your estate. So Wills are really important document in
terms of, it is about exercising choice right so it is your opportunity to say
what you would want to have happen with your hard earned assets.
where does the public trustees come into the equation then?
Well some people might appoint the public trustee as executor under their Will
BONNIE: Is that
usually because they have no family or friends
Yeah it might be that they don’t have anyone that they would entrust or want to
put the burden of that responsibility.
So the public trustee offers a service in terms of acting as executor
and administrator of the Estate, so people have that option. The public trustee might also step in where
someone doesn’t have a Will and there is no one who wants to apply to
administer the Estate so the public trustee might be an entity that steps into
administer an Estate were an executor hasn’t been appointment.
BONNIE: Oh sure
LILY: I know
you have said it is different state by state, so lets use Queensland as an
example, so lets say I haven’t got a Will in place and I do die, are you saying
that even my husband would have to apply
Someone would have to make a court application, it is called letters of administration.
LILY: I can bet
there are people out there who assume purely through marriage that you can just
access everything straight away
LILY: And then
you are grieving someone and then come to learn that actually all these affairs
aren’t in order
and you have to not only apply but grieve at the same time as go through this,
I image lengthy process
It is a fairly standard process, an application for Letters of Administration
but it still requires probably a lawyer to assist in that process, so having a
Will definitely does, it is about making it easy for those who are left behind
and yes in circumstances where they might be grieving as well, so it certainly
a very beneficial and kind thing to do for those left behind. So with my
clients it is really about trying to help them navigate and pull information
together that is really going to make it easy for those left behind.
even though some people may think it is costly to put a will together it seems
like it is going to be more costly for the people left behind if you don’t do
LILY: Yeah and
investment in your future and their future
Definitely. I think it can definitely
save a lot of money and I think it is just really about certainty then about
where your estate is going to end up and yeah people making an assumptions
about will automatically happen that my spouse will just end up with it, is not
necessarily the case so.
LILY: When you
go through high school they teach you some skills to prepare you for the real
world but there are some that they really don’t teach you that are so important
and this is like one of them. Yeah teach
me how to understand taxes, nope teach me how to understand how to have my
affairs in order, nope but yep trigonometry what even is trigonometry I don’t
even remember because I haven’t used it, or maybe I have and I just don’t
realise I have. So for the people out
there who have got no idea, nothing is in order what are some of the key
documents we need to think about.
Well Estate planning is not just about planning for your death, although that
is obviously first thing that we probably think about, so planning for the
future, I sort of use 4 D’s that helps me remember, the risks of what might
happen in the future, one of the risks is debt, another risk is divorce,
another risk is disability and another risk is death, of course death is the
only certain outcome in that so perhaps that is why we think about death but we
don’t always think about what happens if I am in debt, what happens if I get
divorced, what happens if I suffer some sort of disability. So there are these other things to think
about as well in our conversation today we are really probably going to be
focusing on disability and death because the other 2 are really probably more
about financial planning and planning financially and when we are talking about
Estate planning we are really talking about what happens if I have an injury or
an illness that leaves me incapacitated or if I have an injury or an illness
that causes my death, so what happens in those circumstances. So really there
is probably 4 key documents that regularly talk to clients about and are really
necessary to have in place. 2 are
concerned with if he suffer a disability and 2 are concerned with if we die, so
in terms of speaking about disability we need to be thinking about a document
called an Enduring Power of Attorney, some states it is referred to as an
Enduring power of guardianship but it is essentially a document that gives to
someone the power to make decisions for you while you are still alive and
particularly if you no longer have capacity to make decisions for
yourself. So Enduring power of attorney
is a very important document.
LILY: So an
example of that if you are alive but you know have advanced Alzheimer’s and can
no longer make choice you know the way you could 10 years ago, so that would be
a situation where that document would come into play
Yep, Or if you suffer a stroke and are unable to make decisions for yourself or
if you have an accident and you are in a coma or in a persistent vegetative
stage, I find that people, you mentioned Bonnie that it is a morbid topic. People are somehow ready to talk about death
but talking about incapacity is
Much harder to talk about, people don’t want to think about that, so I will
regularly see people who don’t have an enduring power of attorney but also I
think you mentioned Lil about assumptions that my spouse can just do things for
me, that they automatically have power to do something for me so if we have got
joint bank accounts maybe that is the case that my spouse can operate on the
joint bank account without me but if I cant make a decision, my spouse for
example can’t sell my house, or can’t sign a contract for the sale of my house
just because he owns, he is a joint owner of that property so there are lots of
situations where we might need to have an enduring power of attorney even
though we have joint accounts or joint property together, so it is not an
automatic thing that your spouse can make those decisions for you.
LILY: Yeah we need
to break that assumption.
BONNIE: And so
you have had cases where people have contacted you where their loved one has
become incapacitated and they don’t have that enduring power of attorney and
you are called in last minute to try and help rectify the situation.
Yeah so quite frequently I will be asked to see someone who is already
suffering from some cognitive impairment and it has become obvious to the
family the difficulties that there will be because there is no enduring power
of attorney in place, that presents a difficulty because you can only make
these documents when you have the mental capacity to make those documents. So there are times where I have to make an assessment
about a persons capacity and where we might have to be working doctors to
ascertain whether a person does have capacity so we have to take some very
careful steps there and if the person doesn’t have capacity then an application
has to be made to a tribunal for someone to be appointed either administrator
or guardian for that person. So it is really important that these things are
done before and not wait and I think for a lot of young people in particular
they tend to think that an enduring power of attorney is an old persons document.
LILY: Yeah well
you are describing even being in an accident or having a stroke and those
things can happen to young people.
For young people the challenge in coming into this space is perhaps one that we
think we are invincible when we are young
LILY: What we
But to thinking I will get to that, I will get to that at some point.
BONNIE: It is
not a priority now because I am not sick and I am not staring down the barrel
of a journey towards incapacitation or death or
But it is just really important to bear in mind that yeah if you suffer an
accident you can be left incapacitated, incapacity is not something that is
just reserved for the elderly.
So I recommend that all young people have in place a Will and an enduring power
when is your recommendation for that to happen, as soon as they turn 18, is it
as soon as they get married or have like a life long partner, when do you think
people should be doing it
Well I think when they turn 18 and particularly if there is assets, I think for
a lot of young people they think, well they don’t own anything so what is the
BONNIE: I am
eating two-minute noodles while I am studying at uni
that was definitely me, I was like I have not a penny to me
BONNIE: You are
welcome to my candle collection
So why bother but I was involved in an estate where a young man I suppose
perhaps thought in those terms, didn’t own any property, maybe a car, a bit of
money in the bank and he had been studying but had been working and had worked
in various different jobs and along the way had accumulated a number of
superannuation funds and with insurance policies attached to those as well, so
no spouse, no children and thinking nothing in my estate, what is the point,
tragically killed in a car accident and when we administer the estate there
actually ended up being about $400,000 in superannuation and life insurance
benefits which because he didn’t have a will, a parent had to apply for
administration of the estate and the law is set out how that money was to be
divided but he lost his opportunity to say where he would want that money to
go, so you might think you have nothing but there might be something
LILY: You have
made a really good point
LILY: There is
stuff behind the curtain.
BONNIE: Yeah no
there a 100% is.
LILY: Okay so
you mentioned that is one of the 4 documents, what is another one.
So we were talking about in the area of disability or incapacity, enduring
power of attorney and there is also a document called an advanced health
directive, so an enduring power of attorney gives to someone the power to make
decisions about for you, it can either your personal health matters, or your
financial matters or both and in Queensland that is just one document. In other states it is 2 documents, you have a
financial power of attorney and an enduring power of guardianship which deals
with those two types of things, but in Queensland you can roll it all into one
document so that gives someone the power to make decisions, an Advanced health
directive is a document that gives your attorney specific instructions about
what you would or wouldn’t want in certain medical circumstances and it is a
document that you complete with your doctor, so that explanations can be given
to you and you then have again it is about choice, making choices and then
making it easier for your personal health attorney then to make decisions for
you, so it might be if I am in a coma, if I am in the last stages of a terminal
illness, so different medical circumstances, it is giving the attorney the
directions as to what you would want in those circumstances.
when you say attorney, that is the person you have nominated to take care of
LILY: Is that
something we should be doing as young people as well
I think it is a hard thing for a lot of people to do in my experience, they
look at the forms and find it quite overwhelming, you can simply entrust the
person that you have appointed as your attorney with those decisions, you can
talk about what your wishes might be, if it is too difficult for you to get
your head around making specific instructions, giving specific direction
BONNIE: But basically,
just have to trust that our husbands would make the right call for us if we are
in a coma.
LILY: If that’s
who you nominate
well I think he would be a bit offended if I didn’t nominate him.
So that’s the two documents where we are talking about incapacity. The two documents that we are talking about
in relation to death is of course your will, we have mentioned that already and
an important document called a binding death benefit nomination that
specifically deals with what is to happen with your superannuation
LILY: Oh okay
so that is not actually included inside your will. It is separate
You can make a nomination in your superfund that your superannuation death
benefits are paid to your estate, so then it flows into and is tied with your estate
but you can actually nominate beneficiaries directly so that those funds go
directly to your spouse if you want them to or to children, so binding
nominations can be made in favour of spouse or child or a dependant or someone
who you are in an interdependent relationship with so
BONNIE: This is
really interesting that you have brought this up because I was talking to my
husband about this just a few days ago and he was speaking to the solicitor at
his workplace about superannuation for some reason and he said to my husband,
oh yeah you have to nominate in your superfund who your beneficiaries are and
you have to do it every 3 years.
Yeah so some superfund nominations will lapse every 3 years
is so crazy I feel
Some superfunds have no lapsing nominations, so they will be in place until
they are revoked so there can be benefit if checking with your superfund to see
whether they have a non lapsing option but yeah if they don’t have a non
lapsing option then it has to be renewed every 3 years.
happens if you haven’t actually renewed it and you have got no beneficiaries
nominated, do the superfund just take all your money. Do you have to apply for it back?
LILY: I mean
will I be robbed
that’s what I feel like that all of our hard work, earning superannuation and
the superfund is like hahahaha you didn’t nominate anybody it is mine.
It wont be lost, it just means that the superfund has the discretion to pay it
to one or more of your dependants, so again when we are talking about
dependants we are talking about spouse, or children or someone who is
financially dependant on you or you are in an interdependent relationship with
so, all they can pay it your estate so they have a discretion, so again at the
outset it is about choice and making sure that your assets end up where you
want them to go rather than someone else having a discretion as to how, where
those monies will end up so binding nomination becomes quite important.
BONNIE: So maybe in the case of where you and a spouse
have separated or even potentially gone down the road of divorce, if you
haven’t nominated or changed your beneficiary on your superfund, the superfund
likely has that choice to give it to your separated partner.
Correct, yes so that is a risk in doing that, so always reviewing and updating
your documents as your circumstances change is very important.
is not something you think about at the time because you are just so busy going
through that grieving process of life falling apart
LILY: Yeah I
think one of the things that we really do talk about on the podcast quite a bit
is being organised allows space for life to happen and so, I think in our very
first episode we talked about the benefits of getting organised and one of them
was being prepared for an emergency so if all of your documents are together
and you have what you call a grab and go folder, if there is a fire that is
coming towards to your house and you can grab that folder and it has got all
the important documents in it or if your house is tidied and you make sure
everything is set back in place at night when the day starts and something
unexpected happens and you suddenly don’t have as much time to get out the door
with your kids you are not also fighting the chaos, so getting organised is
really important but I think the thing that is really coming out in todays
discussion is that you really do need to get organised now because when someone
does become incapacitated or they do die, you want to be organised, you don’t
want to be worrying about this stuff
LILY: Like be
kind to your future self, we constantly say that, I am just really chuffed that
we are doing this episode because I think it reminds me even now with my
mentality of a 31 year old that it is important to get on top of this stuff, I
am not invincible, I feel it sometimes, less so now that I am 31
BONNIE: And you
have a child
LILY: My bones
creak a bit more, but it is important
BONNIE: Yeah it
organised now, get onto this stuff. Okay
so can we like jump into the big W, the Will.
So it again a Will is an important document, and when I am helping people to
get the information together in preparing a Will, so a lot of people think well
it is just a matter of recording my wishes, setting out something and putting
my signature to that so first thing to understand is that there are formal requirements
that must be met in terms of a Will, so it has to be in writing, it must be
witnessed by 2 adult witnesses who are not beneficiaries under the will.
The person having it must have capacity and not be under any undue influences
as well so it is important that the person is making their will freely without any
pressure from anybody else, so there are these formal requirements that have to
be thought about, but also thinking about, I usually start having people think
about what is actually in their estate, what do they own, and it is important
to understand how that property or how those assets are owned as well because
there are implications for how property is own, for example with real estate,
if you own property with someone else you can either own it as joint tenants or
tenants in common, so there are different ways of owning it and there is
different implications when you die, so
it is really important for people to understand what is in their estate, what
do they own, how do they own it, and particularly people who have business
assets and trusts, so you can have estates that are very simple and you have
can have estates that are very complicated but it is important to go through
and understand what is in your estate and how is it owned, how is it structured
and then where do you want those assets to end up, who are the beneficiaries
that you want to have nominate, are there anything, is there anything that we
need to think about in terms of who those beneficiaries are, are they overseas,
do they have any special needs, are they bankrupt, are they are risk in the way
that they lead their life, is your assets at risk depending on who the
beneficiaries are. So the process is
really about knowing what’s in my estate, knowing who my beneficiaries are, are
there any special needs that I need to take into account, is there anyone I
don’t want to make provision for who perhaps might then be able to contest or
challenge my will, so there are all those sorts of things and then thinking
about who is going to be responsible for administering the estate so that
person is called the executor, they might also be trustee, so there is quite a
few things to think about in terms of understanding, what is in my estate, who
are my beneficiaries and how my wish is going to be given effect, who is going
to be the person that I can trust to handle that responsibility.
LILY: So is the
Will the document that encompasses who takes care of your kids.
Yes you can appoint a guardian for your children in your will.
BONNIE: So a
will is really more than my childhood understanding of well this special
treasure goes to this person, and this special treasure goes to that person
LILY: And none
for Gretchen Wieners
BONNIE: who is Gretchen Wieners?
LILY: Oh my
gosh Bonnie, Mean Girls.
quotable chick flick of all times.
Yeah, no clue
will have to watch that one with the daughter’s in law
LILY: I hope a
few people out there got that, if you did DM me.
I’ve got sons
Mean Girls was not something your kids would have watched.
BONNIE: Ok so I
think it is time now to hear Monique’s clutter confession even though you are a
minimalist, there has to be something hiding in the closet
LILY: So, our
clutter confession segment is a time for people to share something weird, wacky
or wonderful that they have kind of held onto so like someone else might walk
into your home and be oh that’s unusual why have you kept that, why have you
kept your child’s hair, why have you kept the container of toenail clippings
you know whatever it might be?
BONNIE: I think
that just took it to the absolute extreme
LILY: It is a
spectrum isn’t it. So is there anything
that you can think of, or maybe you can dob someone in
Definitely no toenail clippings, um yeah my problem is probably that I throw
out things that I probably shouldn’t throw out, yeah I don’t think that there
is anything that I have kept but there is under my stairwell, there is a rather
large box of iron ore
LILY: Tell us
more about that
BONNIE: I mean
doesn’t everyone have one
Yeah don’t you have a box of iron ore
LILY: Yeah I
just went digging in my backyard, I mean it is assets right, like saving for
BONNIE: Does it
have much value
I would have no clue, to me absolutely none whatsoever, to my husband every
time I say do we still need to be keeping this box of iron ore, there is no way
he is parting with it, so to him it is of huge sentimental value, I don’t know
whether he has dealt with that specifically under his will
LILY: The iron
ore goes to …… Have you dispersed that evenly amongst your sons? One for you, one for you. How did the iron ore come into his life?
He was an engineering surveyor working in the North West of Western Australia
so it has I think some sentimental value for him.
LILY: For his
BONNIE: Is it
heavy, like how did he get it back
Very heavy, I don’t know, it was in a suitcase.
BONNIE: Wow I
mean because you have got like a 20kg limit usually on your flights, so did he
just leave all the clothes behind.
He was living there so he may have had it trucked over
BONNIE: Can you
LILY: I love it
that it is under the stairs though, like this is the compromise, you can keep
this but we are just going to tuck it away
BONNIE: It is
not on display
It is definitely not on display
BONNIE: Is it in a powder form, I have actually never
looked at iron ore
No it looks kind of like crystallized rock, some interesting shapes and
LILY: We might
have to grab a photo of that and throw that up on social media for people
I am sure there are heaps of people like me just thinking, all I can think of
that’s so cool.
LILY: Well if
you have a clutter confession we would love to hear it so be sure to send it
in, you can just flick us a message to our Facebook page, Little Home Organised
and all the other socials as well. Um I
have one more question for you Monique before we wrap up today. For people who don’t know how to access or
choose a lawyer do you have any recommendations on how if they have not got any
of this stuff in place what should they do to get the ball rolling?
Most of my clients come to me by word of mouth, so they have asked someone else
who they have used, the law society also has a list of lawyers
LILY: Is that a
website that people can access
So if you are looking for know with own accredited specialisation in certain
areas you can, the law society has a register that is sort of available, that’s
for accredited specialists but yeah most of my clients come to me by word of
mouth, so ask your friends.
personal recommendation is always the best isn’t it.
LILY: The other
thing I find as well, is if you haven’t got anyone in your immediate circle, if
you are part of like an online group, like a Facebook group
BONNIE: Like a
mums group or something
groups especially they love to recommend things, if they have had a really
positive experience or if they have had a really bad one
LILY: Don’t go
to that mechanic, you know that could be another place you could do a call out
and find about peoples personal experiences if you haven’t got anyone in your
just to clarify because this is something that I was a little naïve about when
I was a teenager, not everyone who is a solicitor can necessarily do Wills and
Estates can they.
Not everyone will do Wills and Estates so it is important just to be ringing
and usually if the lawyer doesn’t do Wills and Estates they will tell you that
that is not their area and they might refer you on to somebody else but you can
ring your local law firm and ask if there is someone there who can handle Wills
and Estates for you. I am sure you will
be able to find somebody
BONNIE: And one
last question I have, how long does the process usually take if you are putting
in place these documents, it is a couple of days, a couple of weeks, a couple
Well it varies, sometimes depending on the complexity of a persons situation,
some people like to take a lot of time to think through their documents but it
need not take very long, generally it takes me a week to turn around documents
for people, it just depends on how busy your lawyer is as well
So the workload that is there and there are circumstances where we really want
to get Wills in place quite quickly because people are either being
hospitalised or going away so we look at trying to have a quick turn around
where we can, so it needn’t, while the process might seem a bit overwhelming to
start with, I think once people have actually got the ball rolling like most
things, once you make a start they usually find oh that wasn’t as hard as I
thought it was going to be
BONNIE: Yeah it
is just that
It is having someone to help them navigate those questions, to ask those
questions and to help them get organised so one thing I should say for people
is that pets are not children
BONNIE: Oh I
think you have just offended a whole bunch of our listeners.
Don’t leave your estate to your pets
BONNIE: Oh yes
that is actually a really good point because what is your schnauzer going to do
LILY: With your
They are property, you can leave them to somebody else and you can leave that
person with a gift to be able to take care of them if you want to. But yeah it is probably not wise to leave
your estate to your
can do it like legally
No, so a dog cannot be a beneficiary but there are ways of structuring as I say
you can leave the dog to somebody and
give the money to them.
Create a trust
can only be used for the care of the dog
BONNIE: Wow I
suppose if you are use to a life of luxury
pampered pooch. Monique thank you so much for chatting with us today, I know
that even I have learnt a lot, not that I knew too much about this to begin
with but it has been really informative.
Thanks for having me.
BONNIE: So, for
this week’s tidy task, if you don’t have your Will, your Enduring Power of
Attorney, your binding financial death benefit nomination
BONNIE: Or your
advanced health directive sorted, your tidy task is to get the ball rolling, remember
that every journey starts with a single step
LILY: And that
is it for this week’s episode, thank you for tuning in, lending us your ears
for another week of Little Home Organised.
remember progress not perfection.
LILY: See you
LILY: So we
have talked about the artwork coming into our homes and some of the
We would love
to see the conversation continue, head over to the