Wills & Estates

We are experienced estate planning and succession lawyers and regularly advise clients on the preparation of wills, powers of attorney and enduring guardian documents; the creation of trusts (including family trusts); estate administration; and the management of estate disputes.

The importance of having a valid Will

Every adult should have a will. For those who are young and healthy, a will is a way to ensure that your assets will be distributed according to your wishes if you die unexpectedly. The need for a will becomes especially pressing for people who have children or other dependents. A will can create trusts in which property and funds may be held for the care of young children, and nominate a guardian to look after them.

If someone dies without a will they are “intestate”, and the law decides how their assets are distributed. While such a distribution is intended to reflect community expectations with assets generally passing to the deceased’s next of kin, it may not align with your wishes nor fit your unique circumstances. As each family is different, and many complex, the one-size-fits-all rules of intestacy do not suit everyone. Having a valid will sets out your precise wishes and provides certainty for your loved ones. Additionally, it avoids the need for your grieving family to have to apply to the court for a grant of administration before dealing with your estate, which can cause additional delay and expense.

A key function of making a will is to nominate an executor, so even those with modest assets should make a will. An executor has authority to manage your affairs when you die, and administer your estate according to the wishes set out in your will.

Estate administration

The process of managing a deceased estate – that is, collecting assets, paying debts, and distributing property to beneficiaries, is referred to as estate administration. This is carried out by the executor appointed in the will of a deceased person or an administrator appointed by the Supreme Court in the case of an intestate estate.

A key role for an executor is to apply to the Supreme Court for a grant of probate. Probate recognises the validity of a will and authorises the executor to deal with the estate. If an asset of the deceased estate is being held by a third party (such as a bank), then a grant of probate is usually required before the third party will release the asset for distribution to the beneficiaries. The process of applying for a grant of probate can be complicated and is typically done with the assistance of an estate lawyer.

Not every deceased estate requires a grant of probate, for example, where there are no significant assets held by third parties or the major asset of the deceased estate was a jointly owned property. A lawyer can help you to determine whether a grant of probate is necessary or recommended and assist you with fulfilling your role as an executor or administrator in collecting and distributing assets and finalising the estate.

Testamentary trusts

If you have children or vulnerable adults who depend on you financially, a testamentary trust might be the right tool to help you look after them. A testamentary trust is made under a will and begins when the testator (will-maker) dies.

A trust can help you to financially support someone by safeguarding and distributing assets without giving them direct control of them. You can choose to make your testamentary trust discretionary whereby the trustee has some freedom in distributing the income and capital of the trust. For instance, your trustee may distribute the trust based on the different needs of each child through the years. This allows the trust to evolve over time as circumstances change.

While there are costs associated with the administration and reporting requirements of a trust, they can also have taxation benefits which you can discuss with your accountant and lawyer so you can weigh up the pros and cons.

Planning ahead

While planning your estate, you should consider whether you might like to put in place an enduring power of attorney and appointment of enduring guardian. These documents enable you to choose somebody you trust to “step into your shoes” if you lose the capacity to make your own decisions.

An enduring power of attorney is a legal document appointing somebody (your attorney) to make certain legal and financial decisions for you if you lose capacity and can no longer make decisions for yourself. The enduring power of attorney must be made while you (the principal) have the capacity to understand the nature and effect of making such an appointment.

An appointment of enduring guardian gives someone the power to make decisions about certain health and lifestyle matters on your behalf. The appointment will only come into effect if you lose the capacity to make these types of decisions for yourself.

Your attorneys and guardians are required to act in your best, interests, however it is vital that you choose somebody you trust and who you believe will make decisions that align with your values. We can help you decide which documents might be right for your circumstances and prepare the necessary forms.

If you need assistance, contact [email protected] or call 02 9269 0662 for expert legal advice.