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Wills & Estates

Good estate planning is important to safeguard your assets and protect your wealth and family. While having a valid Will is essential, there are other things like superannuation, trusts and interests in property that may need to be considered to maximise your estate and protect your loved ones. We take a holistic approach to estate planning to implement strategies to deal, not only with the inevitable, but to help ease complications during times of crisis like illness and incapacity.

Preparing your Will

A Will is a legal document that names your beneficiaries – those people to whom you wish to leave your property and possessions – and appoints an executor – a person or people you trust to carry out your wishes after you die. A Will can also contain provisions regarding how your remains should be dealt with and who will act as guardian for any minor children. 

The complexity of your Will is generally determined by your circumstances, family structure, assets, intended beneficiaries and any trusts which you have in place, or wish to create. Business and company interests should also be considered when preparing your Will.

As your circumstances change throughout life, your Will should be reviewed and updated to ensure that it continues to reflect your testamentary wishes. Any of the following life events can trigger the need to review your Will:

  • marriage or divorce
  • commencing a de facto relationship
  • having a child
  • the death of an executor or beneficiary
  • buying or selling a property or business
  • receiving an unexpected windfall or inheritance

Testamentary trusts

A testamentary trust is a discretionary trust contained in a Will that comes into effect when a testator dies. A trustee is pre-appointed to manage the trust and distribute assets to beneficiaries in accordance with the rules outlined in the trust deed.

Holding assets in trust can help protect vulnerable or minor beneficiaries and safeguard assets from claims by third party creditors. The flexibility and control that a trust allows in distributing assets can also be advantageous when it comes to taxation.

Trusts are complex and advice and guidance is important to ensure the trust is compliant and structured to achieve its objectives. We can discuss your circumstances so you can decide whether a testamentary trust is right for you.

Powers of Attorney

A Power of Attorney is a legal document that gives another person or organization authority to act for you while you are still alive. Any lawful action taken by the attorney under the Power of Attorney is binding on you, so it is important to appoint someone you trust. Appointing an attorney can be a safeguard for your interests and those of your loved ones.

You can appoint an attorney to take care of your legal and financial matters in accordance with your instructions and in various circumstances, for example, while you are on an extended trip, when you just need some extra help, or if you are no longer able to manage your own affairs. Your attorney can step in and help with things such as collecting income or rent, dealing with real estate, or paying your bills.

There are two types of Power of Attorney – active and enduring

An ‘active’ Power of Attorney is one where you direct the attorney to act immediately for you in accordance with your instructions. You can also sign a Power of Attorney which remains dormant and is activated only if required.

An ‘enduring’ Power of Attorney continues to operate even if you later become unable to make legal and financial decisions due to disability or illness.

Enduring Guardianship

An appointment of Enduring Guardianship allows you to appoint a substitute decision-maker if you can no longer make your own health and lifestyle decisions because of an accident, illness or disability.

Your guardian can make lifestyle and health care decisions only if you lose the capacity to make your own decisions at some time in the future. These decisions include where you should live and what medical treatment and services you should receive.

Probate and estate administration

Probate is a grant made by the Supreme Court which ‘proves’ the Will of a deceased person and allows the executor to distribute the estate assets in accordance with the Will. Probate may not be required in all instances, particularly for small and simple estates, for example, where the main asset is the family home which is jointly held between the deceased and a spouse or partner. We can advise you whether a grant of probate is necessary, or recommended, in your circumstances.

If probate is required, an application and supporting documents are filed with the Supreme Court. The intention to apply for probate is advertised and the executor must promise that, once probate is granted, he or she will distribute the deceased’s assets in accordance with the Will.

If a family member has died intestate (without leaving a valid Will), somebody will need to apply for letters of administration so the estate can be distributed and finalised. We can also assist with this.

Information for executors

Being the executor of a Will comes with great responsibility and can be daunting, particularly when you may be grieving the loss of a loved one. Administering an estate can be a lengthy process and, depending on the circumstances, can become quite complex.

We can provide advice and help you navigate your duties as an executor (or administrator) of an estate. We will:

  • locate and obtain the deceased’s Will and any title deeds
  • write to banks, building societies, superannuation funds, etc. regarding the deceased’s accounts
  • deal with estate debts and liabilities and write to creditors of the deceased
  • obtain a grant of probate or letters of administration, if necessary
  • deal with all aspects of the administration of the estate
  • arrange for tax returns and payment of any tax liability, as required
  • distribute the estate to the beneficiaries in accordance with the Will
  • defend any claims against the estate

We recognise the importance of planning for your future and the future of your family.

If you need any assistance, contact us at [email protected] or call 02 9570 7671 for expert legal advice.