Wills & Estates

Nobody likes thinking about death, and accordingly many people put off making plans to finalise their affairs for when the inevitable happens. While estate planning can be confronting and complex, we can help make this important legal task less daunting. We work with you and your family to plan how you would like your affairs dealt with after you die, and to ensure you have the right tools in place to help manage things as you age. 

Effective Estate Planning

Effective estate planning can include a range of tasks, such as:

  • Preparing a valid Will to appoint an executor/s and to determine who receives your assets when you die.
  • Putting a Power of Attorney/Enduring Power of Attorney in place so your personal and/or financial affairs can be dealt with by somebody you trust for your convenience, as you age, or if you are incapacitated. 
  • Assessing your assets and the taxation implications on holding, selling or transferring those assets.
  • Creating testamentary trusts to help protect property and safeguard at-risk beneficiaries from third party creditors, estranged partners, or unwise spending due to incapacity, disability or dependency.
  • Minimising the potential for disputes after you die.
  • Business and farm succession planning – as local rural professionals we can work with you to ensure appropriate arrangements are in place to deal with your family farming needs and business interests through future generations.

Preparing a Will

Every adult should have a Will regardless of the value of their assets and despite their family dynamics. One of the most important functions of a Will is to nominate an executor who will be responsible for taking care of the many things that must be done when someone dies. Executors’ duties can vary, whether they are obtaining probate, distributing a complex and substantial estate, or dealing with the more practical aspects of a person’s affairs such as updating service providers or rehoming a pet. 

No matter how much or how little you own, it is likely that you will also want to choose your beneficiaries – those who should inherit your assets and property.

What Happens if I die Without a Will?

Dying without a Will is referred to as dying “intestate”. In such cases, the law decides how your assets are distributed. This distribution may be in line with your wishes, with assets passing to a partner and/or children (as relevant), however everyone’s situation is different, and the one-size-fits-all rules of intestacy simply do not suit everyone. In any case, administering an intestate estate takes additional time, energy, and money from the family of the deceased, often when they can least afford it. 

Do I need a Testamentary Trust?

A testamentary discretionary trust is made under a Will and comes into effect when the testator dies. The trust can help protect any minor or vulnerable beneficiaries you leave behind. A trustee is appointed to manage the trust in accordance with the terms of the trust deed, enabling capital and income from the trust to be distributed to the beneficiaries flexibly, and as needed.

Trusts can also be effective for managing tax, and you can discuss these potential benefits with your lawyer and accountant. As with all forms of estate planning, a testamentary trust is not right for everyone. The administration of a trust costs money each year that it operates. This will include annual tax and auditing costs and could also include the trustee’s professional fees. We can help you decide whether a testamentary trust is right for your circumstances.

Keeping your Estate Plan Current

Estate planning is an active process of re-evaluating things when your circumstances change. Major life events might mean you need to review and update your estate planning documents. Such events include:

  • the birth of a child
  • separation, divorce, or entering into a new domestic relationship
  • the passing of a beneficiary or executor named in your Will
  • a change in working conditions such as buying or selling a business
  • changes to superannuation, insurance policies or taxation levels
  • major changes to the family’s asset pool, receiving an inheritance or disposing of a major asset
  • a change in your health circumstances
  • becoming involved in a trust

Dealing with a Deceased Estate

Losing a loved one or being an executor of a deceased estate can be a challenging time. We can assist with the legal process of administering and finalising the estate and guide you through any obstacles along the way.

Before administering an estate, an executor may need a grant of probate from the Supreme Court. Probate validates the Will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the Will. 

If a person dies intestate, a family member may need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised. Once granted, the person authorised to deal with the estate is known as the administrator.

Executors and administrators have many responsibilities which typically include:

  • making funeral arrangements
  • identifying and protecting assets
  • contacting the deceased’s account providers and government authorities
  • claiming funds under superannuation and life policies
  • distributing assets, and transferring property to beneficiaries 
  • organising estate tax returns

Sometimes, executors and administrators need to deal with issues that are outside their areas of expertise. Facing a dispute or family maintenance claim can be particularly challenging during this time, but we can help you through the process. 

If you need assistance, contact one of our lawyers at [email protected] or call 03 5728 1866 for expert legal advice.