About Wills & Estate Planning

Taking time now to plan your estate and make a legally binding Will can minimise stress for you and your family if you are incapacitated and provides certainty after you die. We can assist with preparing an estate plan tailored to your specific circumstances.

We will take into consideration the following important matters:

  • Preparing for the unexpected – ensuring documents are in place so your affairs can be dealt with by somebody you trust if you are away, unwell or become
  • Planning for the unavoidable – having a valid Will that states how your assets should be distributed after you die and that appoints an executor to oversee the administration of your estate.
  • Maximising the value of your estate and protecting vulnerable family members– using trusts and other strategies to protect assets from third parties and distribute them in the most tax-effective manner.
  • Minimising the potential for your Will to be challenged – understanding how family provision claims work and implementing ways to reduce the likelihood of a claim being made on your estate.
  • Business succession planning – where relevant, ensuring arrangements are in place for your business and company interests when you retire or die.

Making a Will

A Will is a written direction of how you would like your assets distributed after you die and who should be responsible for carrying out your testamentary wishes (your executor/s). A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.

When preparing a Will, you should consider your family structure and your personal and financial circumstances. The risk of a family provision claim being made after you die should be considered, as well as structuring your affairs to ensure the most tax effective distribution of your assets. In some cases, it may be beneficial for your Will to incorporate a testamentary trust to help protect assets for future generations and to optimise their value through effective strategies.

A testamentary trust is a discretionary trust that comes into existence when the will maker dies. The effect of a trust is the separation of the beneficial from the legal ownership of property, through the appointment of a trustee who manages the trust and holds the assets on behalf of the beneficiaries. Holding assets in trust can help protect them from claims by third party creditors in the event of bankruptcy, insolvency, or family law proceedings.

What if I don’t have a Will?

If you die without a Will, you will be said to have died ‘intestate’. If this happens your assets will be distributed according to a formula set out in the laws of intestacy relevant in each Australian state or territory. While these laws have been enacted to reflect certain community expectations, we all know that each family is different and such ‘expectations’ may not really reflect your wishes. Without a Will, you may leave open the potential for argument and disputes to arise after you die as your family/dependants are left guessing as to what you may have wanted.

If you die without a Will, your next of kin may need to make an application to the court for Letters of Administration before being able to deal with your assets and administer the estate.

Having a Will gives you peace of mind that you have made your wishes clear and provides certainty and clarity for your loved ones.

Appointing an Executor

Your executor will be your personal legal representative when you die and should be chosen with care.

An executor’s responsibilities include arranging your funeral, collecting debts owed, claiming under any insurance policies, protecting your assets until distribution, obtaining probate, ensuring assets are distributed according to the Will and filing estate returns.

If the Will is disputed or a family provision claim is made, your executor will be responsible for dealing with the dispute and giving instructions to legal representatives. The person you appoint should be willing to accept the role and, although usually guided by a lawyer, your executor should have the confidence, capacity, and experience to fulfil the position.

Powers of Attorney and advance care planning

While planning your estate, we recommend that you consider proactive measures to plan for any future incapacity. A power of attorney is a legal document authorising a person (the appointed attorney) to act on another person’s (the principal’s) behalf.

Depending on the type of power given, the attorney may make financial, legal and/or personal decisions for the principal.

Powers of attorney are useful if you are planning to go overseas, suffer from poor health, or reach a stage in your life when you need extra help to manage your affairs. You can determine the extent of authority you wish to give to your attorney, the time that the authority starts, and the nature of decisions your attorney can make will depend on the type of document you sign.

It is important to discuss your options with a lawyer as the position of an attorney is one of great responsibility. We can explain the benefits of granting a power of attorney and recommend the appropriate type for your circumstances.

We recommend you also think about what medical treatment you would like to receive if you are not able to make those decisions yourself. This is referred to as advance care and medical treatment planning and forms another important part of your overall estate planning.

Aged care advice retirement villages

It is important to understand the lifestyle, legal and financial implications when considering retirement village living or entry into an aged care facility. These decisions are often made with the assistance of family members and a legal / financial advisor. Retirement villages are operated by private enterprises or community organisations with accommodation and service levels varying significantly between each. Laws in each state govern the relationship between operators and residents and set out the legal and disclosure requirements of operators.

Having a valid Will, protecting your assets and ensuring your retirement and beyond is as comfortable and fulfilling as possible, and that future medical and lifestyle decisions reflect your values are important issues for all of us.

If you need any assistance, contact one of our lawyers [email protected] or call 03 9598 8699 for a no-obligation discussion and for expert legal advice.