Wills & Estates

An effective estate plan requires: a Will to determine what happens to your assets when you die; ensuring that your legal, financial and health affairs can be managed as you age, or if you are incapacitated; consideration of the most tax-effective distribution of your assets; strategies to best protect your wealth.

Preparing a Will

An effective Will provides clarity for your loved ones and makes the most of your hard-earned assets. Your Will should appoint one or more executors who will be responsible for administering your estate, and direct how your assets will be left or divided between your beneficiaries. You may also appoint guardians for minor children and provide directions for funeral arrangements.

Wills can be simple or more complex, and we may recommend including a testamentary trust. This is a discretionary trust contained in your Will that comes into effect after you die. Testamentary trusts can help safeguard assets from third-party creditors and protect minors and other vulnerable beneficiaries.

When should you review your Will?

A significant change in your personal or financial circumstances generally means you should consider reviewing and possibly updating your Will.

Reviewing your Will is particularly important when:

you marry, separate, divorce, or start a new relationship
you have a child or adopt a child
a beneficiary or executor named in your Will dies
there is a major change to your health
you buy or sell property, start a business, or acquire company interests
you receive an inheritance or large sum
there are changes to your superannuation, personal insurance or tax levels
you become involved in a trust

While your Will may already be drafted to contemplate some of these events, a quick review can identify whether changes are needed to reflect your new circumstances.

Powers of attorney

When planning your estate, we suggest you consider how your affairs will be managed in the future for convenience, as you age, or if you are incapacitated.

A power of attorney allows you to appoint a trusted person (your attorney) to manage certain legal and financial affairs on your behalf. It can be used for convenience (for example, while you are overseas) or for necessity (if you are hospitalised). The document creating the power of attorney can authorise your attorney to only carry out specific tasks and can be limited for a specified period. Alternatively, an enduring power of attorney enables your attorney to make decisions and manage your legal and financial affairs indefinitely (until you die) if you lose capacity.

We can help you determine the type of documents that are best suited for your needs including any restrictions you wish to include.

Executors and administrators

An executor is the person appointed under a Will to look after somebody’s estate when they die. If the deceased person did not leave a valid Will, the next of kin will usually be responsible for administering the estate and may need to apply to the court for letters of administration.

Executors and administrators have significant legal responsibilities and may need to deal with matters that are outside their areas of expertise. For example, they may need to consider the tax implications on the sale or transfer of assets, the order of payment of debts, or deal with a family provision claim being made against the estate.

Probate and letters of administration

Probate is a grant made by the Supreme Court that ‘proves’ the Will of a deceased person and authorises the executor to deal with the assets. The requirement to obtain probate generally depends on the size of the estate, the type of assets, and how they are held. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.

Dying without leaving a Will is referred to as dying intestate. In such cases, the deceased person’s assets are distributed according to a statutory formula determined by the relevant laws in each jurisdiction. The next of kin or interested person will usually need to make an application to the court for a grant of letters of administration. Once letters of administration are granted, the administrator may deal with and finalise the estate.

Estate Disputes

Sometimes estate disputes arise because somebody has not been left what they think they deserve after a person dies. Other times, the dispute arises because somebody thinks that the Will is fraudulent, or there was some pressure on the testator to make certain gifts.

Family provision claims

A family provision claim may be made by an eligible person seeking a share or greater share from an estate. Claimants must prove that the deceased failed to make adequate provision for their proper maintenance, education, and advancement in life.

Eligible persons usually include a spouse, former spouse, de facto partner, child of the deceased, or certain individuals who were in a close personal relationship with the deceased or who were dependent on the deceased at the time of death. Our experienced team can advise you with regard to the relevant eligibility criteria in your jurisdiction and help you to make a claim. Strict timeframes apply, so it is important to obtain our advice promptly.

We are experienced in all areas of estate planning, administration, and estate disputes. We can help you to implement an effective estate plan that makes the most of your hard-earned assets, or guide you through the legal process of administering the estate of a loved one. If you have been left out of a Will or are an executor facing a family provision claim, we can provide expert advice to help resolve the claim efficiently and without depleting estate assets.

If you need assistance, contact one of our lawyers at [email protected] or call (02) 6058 0000 for expert legal advice.