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Wills & Estates

We can help you prepare a Will and an effective estate plan that considers your personal, financial, and family circumstances.

If you are the executor of an estate or have recently lost a loved one, we can also guide you through the probate and estate administration process.

What is an estate plan?

The preparation of a carefully considered Will is a central part of estate planning and part of the service we regularly offer our clients. Estate planning, however, often involves more than writing down a list of your assets and deciding who should receive them after you die. Effective estate planning looks at ways to maximise wealth and to protect vulnerable beneficiaries. It considers your family structure and all asset sources, including your superannuation.

Typical questions when making an estate plan include:

  • Who would you like to appoint to manage your affairs after you die and distribute your assets according to your Will?
  • How would you like your assets distributed and who should they go to?
  • Do you have young children? Who might be a suitable guardian to appoint if you were to die before the children were old enough to look after themselves?
  • Will you need to appoint a trustee to manage assets to be held in trust for your children until they are adults?
  • Do you have children from a previous relationship? If so, consider what provisions will be made for those children.
  • Does your partner have children from a previous relationship?
  • What provisions should you make for a de facto partner?
  • Are there certain individuals you wish to exclude as beneficiaries? Could this decision lead to a dispute over the estate?
  • Who would you like to manage your personal, legal, and financial affairs and make decisions about these matters if you no longer have capacity to make such decisions yourself?

Choosing your executor

Executors have many responsibilities. These typically include arranging your funeral, identifying and protecting your assets, collecting debts owed, claiming under insurance policies, obtaining probate, paying accounts, and distributing your assets according to your Will.

If the Will is disputed, your executor will be responsible for dealing with the dispute including giving instructions to legal representatives in the event of litigation being commenced.

It is common to appoint one or more trusted family members or friends as your executor/s however this is not always the case or may not be suitable in your circumstances. You should consider whether your proposed executor is:

  • willing to accept the role of executor
  • capable of managing your estate in terms of their own health and capacity
  • suitable to manage your estate in terms of having sufficient time, experience and the confidence to deal with your affairs in the manner you would like
  • able to act impartially, which is particularly important if you foresee potential disputes over your estate
  • likely to outlive you

You can consider appointing a second alternate executor as a backup in case your first choice is unable to act in the role. Alternatively, appointing joint executors to fulfil the role may be a more suitable option.

The benefits of using a lawyer to prepare your Will

A Will is a legal document recording how you would like your assets dealt with after you die. If a Will is valid, on your death, the person you have nominated as your executor will collect and distribute your assets in accordance with your wishes.

Certain legal formalities must be met when a Will is prepared for it to be valid. For example, if the Will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die.

Involving a lawyer to prepare your Will can help structure and maximise your estate to achieve its full potential. We will consider your individual circumstances, financial position, and issues such as taxation and superannuation. We will also consider your family structure and take steps, if necessary, to minimise the potential for disputes to arise after you die.

Testamentary trusts

In certain situations, you might want to establish a testamentary trust which is a discretionary trust created in a Will that comes into effect when you die. This enables you to appoint a trustee who may use their discretion as to how and when assets from your estate will be distributed. The trustee makes these decisions for those identified as beneficiaries who can receive gifts from the capital or income of the trust in accordance with the rules outlined in the trust.

While there are ongoing costs involved with a testamentary trust, meaning they are not an appropriate choice for everyone, they provide a level of protection for assets or beneficiaries in a number of ways. For instance, if a person wants to leave gifts to young children, or otherwise vulnerable individuals, a testamentary trust can assist in ensuring that funds are used to benefit those vulnerable individuals. A testamentary trust can also help to protect assets from third parties, for example, if a beneficiary is at risk of bankruptcy or being sued. Another advantage of having a testamentary trust is the potential to facilitate the favourable treatment of tax.

Proactively planning for how you would like your assets to be distributed when you die, and your affairs managed if you are incapacitated can provide certainty and save much heartache for your family when the inevitable or unforeseen occurs. Our experienced team can help structure your estate to achieve its potential and can help guide you through the administration of the estate of a loved one.

If you need assistance, contact us at [email protected] or call 07 5528 6840 for expert legal advice.