Wills & Estate Planning Law

Our compassionate team has a wealth of knowledge and practical expertise in administering deceased estates and creating estate plans that provide for optimum distribution of your wealth.

Preparing a Will

An effective estate plan generally starts with a valid Will that 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 it needs to direct how your assets will be left or divided between your beneficiaries. Your Will can also appoint guardians for minor children and provide directions for funeral arrangements.

Your Will may be simple, or more complex, by providing for a testamentary trust or trusts after the will maker dies. Testamentary trusts can help safeguard assets from third-party creditors and protect minors and other vulnerable beneficiaries. The flexibility of a trust can also be advantageous when it comes to taxation matters. We can discuss the option of including a testamentary trust when preparing your Will.

When should you review your Will?

Any 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.

Help with managing your affairs

When planning your estate, we recommend preparing documents that can help you manage your affairs for convenience, as you age, or if you become incapacitated.

A power of attorney enables you to appoint a trusted person (your attorney) to make certain legal and financial decisions on your behalf. A power of attorney may be used for convenience (for example, while you are overseas) or for necessity (for example, if you are temporarily hospitalised). The power of attorney may specify that your attorney only carry out certain tasks and can be limited for a specified period of time. Alternatively, an enduring power of attorney will come into effect if you lose capacity and will allow your attorney to make decisions for you indefinitely. A power of attorney or enduring power of attorney ends when you die.

An appointment of enduring guardian appoints somebody to make certain health and lifestyle choices on your behalf if you are incapacitated.

These documents provide assurance that somebody you trust is authorised to help manage your affairs and make certain health decisions when you are unable to. We can help you determine the type of documents that are best suited for your needs including any restrictions you wish to include.

When someone dies – executors and administrators

After a person dies, someone needs to look after their property and finalise their financial and other affairs. This is typically referred to as estate administration. An executor is the person appointed under a Will to do this. 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.

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.

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. We can help you through the legal process, providing advice and guidance to help carry out your duties, and to ensure the estate is administered as smoothly and effectively as possible.

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.

A grant of letters of administration may be required when a person dies intestate. On application, the court will appoint an administrator, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

Taking the time now to prepare an effective Will and estate plan can save you and your family additional stress and costs when you die, or if the unforeseen happens.
We can help you to:

draft a valid Will that provides certainty for your family when you die
prepare documents to appoint somebody you trust to manage your financial affairs as you age and to address any future incapacity
appoint an enduring guardian who will respect your health care values if you are incapacitated
set up family and testamentary trusts to help safeguard assets, maximise your wealth and protect minors and vulnerable beneficiaries
apply for a grant of probate or letters of administration
carry out your duties as executor or administrator
make or defend a family provision claim

If you need assistance, contact one of our lawyers at [email protected] or call (02) 4970 5050 for expert legal advice.