02 8249 1996 07 5578 9340

Wills & Estates

Having an effective estate plan helps you to prepare for the inevitable and the unforeseen by ensuring that:

  • your legal and financial affairs are managed by somebody you trust (and has your best interest in mind and at heart) if you are unable to do so yourself;
  • health and welfare decisions can be made that align with your wishes, goals and values if you are incapacitated;
  • a trusted person (such as a family member, relative or close friend) is appointed to manage and distribute your estate;
  • your assets (such as real estate, chattels and money in bank) are protected from third parties and distributed to your intended beneficiaries with optimum taxation outcomes when you die.

Making a Will

Everybody over 18 should have a Will. If you do not have a Will, you will die intestate and your assets will be divided according to the rules of intestacy which may not be as you would have desired.

A valid Will determines who should benefit from your estate when you die (your intended beneficiaries) and who will be responsible for managing and administering it (your appointed executors and trustees). A Will can be simple or complex and you can include provisions for many of life’s eventuality such as the  appointment of guardians for minor children,  care plans for children with special needs, set time frames for distribution (for example when a beneficiary reach the age of 18 or 21) and provide directions for funeral arrangements.

When preparing or reviewing / updating a Will, you should consider your family structure (for example traditional nuclear family or blended family), your personal (significant events such as a birth, marriage, death, inheritance) and financial circumstances. The risk of a family provision claim being made against your estate after you die should also be considered.

Testamentary Trusts

Ensuring the most tax-effective distribution of your assets when you die and providing your beneficiaries with maximum flexibility in dealing with their inheritance and protecting at-risk beneficiaries if necessary, is an important part of estate planning.

A testamentary trust is a more complex Will that creates one or more trust vehicles after the testator or Will maker dies. The trust assists in safeguarding assets from third-party creditors, protects at-risk beneficiaries and provides flexible and potential tax advantages.

Talking to a lawyer and other professionals such as an accountant can help tailor your Will to address these important considerations.

Powers of Attorney

A power of attorney appoints a trusted family member, relative or friend (your attorney) to look after your legal and financial affairs if you are unable to do so yourself. The power of attorney can be general or specific and specify the extent of powers an attorney is authorised to exercise. It can operate for a limited time, such as while you are travelling overseas, for a one-off transaction or take effect indefinitely from the time you lose mental capacity.  The latter is known as an enduring power of attorney.

Advance Care Planning

Advance care planning considers your values and wishes concerning your future health care needs. You can document directions about these matters now, so that your wishes are respected if you become incapacitated and cannot convey these directions yourself. Directions can include the type of medical treatment you consent to or refuse, and your values and preferences that should be considered regarding your future health care needs. For example, you may include directions to withhold or withdraw certain life-sustaining measures (subject to certain criteria).

Advance care planning involves:

  • consideration of your values regarding health care;
  • appointing a substitute decision-maker;
  • completing the relevant documentation.

The relevant form in Queensland is called an Advance Health Directive and in New South Wales, an Advance Care Directive.

Advance care planning requires transparent and open communication with your family, friends and carers, and your health care providers so that your values and wishes concerning future medical care and treatment options are understood. This will usually involve talking to your doctor about any pre-existing conditions, prognosis, and treatment options which may need to be reviewed on an ongoing basis.

Deceased Estates – executors and administrators

After a person dies, someone needs to look after their assets and liabilities and to administer the estate. An executor is the person appointed under a Will to do this. An administrator has the same role however is appointed by the Court through Letters of Administration when a person dies intestate or an appointed executor is unable to act.

Executors and administrators have significant legal responsibilities and may need to protect themselves from personal liability. This is particularly so with complex estates or where a claim is made against the estate. They will often need to consider matters outside their areas of expertise such as the tax implications on the sale or transfer of assets, the order of payment of debts, and the consideration of a family provision claim. Obtaining professional advice and guidance in these areas is essential.

Probate and Letters of Administration

An executor may need to apply for probate in the Supreme Court before administering an estate. The granting of probate ‘proves’ the Will of the deceased and authorises the executor to deal with the assets.

The requirement to obtain probate depends on the size of the estate, the type of assets and how they are held. Most financial institutions require a grant of probate to release funds over a specified amount. Probate is also required to transfer real estate that is not jointly held between the deceased and a beneficiary. A grant may also be recommended if contentious issues exist.

A grant of Letters of Administration is where a Court appoints an administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

It is sensible to plan ahead, not just for expected end of life events, but for matters as simple as travelling overseas which may mean you need someone to keep an eye on things for you while you are away.

Having an effective estate plan takes some of the pressure off you and your loved ones throughout life’s uncertainties. Our lawyers have considerable experience in assisting clients with important life decisions and will work with you to explain your options in simple terms and prepare the necessary documents tailored to your circumstances.

If you need any assistance contact one of our lawyers at [email protected] or call 02 8249 1996 for a no-obligation general discussion and once retained for expert legal advice.