Wills & Estates

Effective estate planning often goes beyond drafting a valid will. You might need to consider:

• protecting assets and vulnerable beneficiaries
• assessing the likely tax implications on the transfer of assets
• making an enduring power of attorney to appoint somebody you trust to help manage your financial and legal affairs if you are incapacitated
• appointing an enduring guardian to convey your health and lifestyle wishes if you are unable to do so yourself
• guarding against potential claims against your estate by third parties
• business and farm succession planning

We can help you with all aspects of your will and estate planning, whether your affairs are simple or complex, and whether you have modest or significant assets. We can also review your existing plans when your circumstances change to see if they still adequately reflect your needs.

Preparing a Will

Every adult should have a valid will. For those who are young and healthy, a will is quick and inexpensive insurance against the unexpected. If someone dies without a will they are “intestate”, and the law decides how their assets are distributed.

Generally, the laws of intestacy distribute your assets to your next of kin, according to a specific formula and depending on your circumstances. While this distribution might be in line with your wishes, the one-size-fits-all rules of intestacy do not suit most people.

Involving a lawyer to prepare your will can help structure and maximise your estate to achieve its full potential. We will consider your individual circumstances, financial position, and matters such as taxation and superannuation. We will also consider your family structure and take steps, if necessary, to minimise the potential for disputes to arise after you die.

Are you an executor who needs help?

Estates vary in complexity and executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the executors.

The duties of an executor might typically include:

• making funeral arrangements
• locating the will and obtaining a copy of the death certificate
• identifying and securing the deceased’s property and assets
• liaising with banks, service providers, government bodies, etc.
• determining the value of assets
• applying for probate
• collecting funds from financial institutions and insurance companies
• selling / transferring properties and assets
• distributing the proceeds of the estate and reporting to beneficiaries
• setting up trusts (if relevant)
• dealing with estate disputes / family provision claims

If you have been appointed as the executor for a deceased estate, you may be feeling overwhelmed. While some people do undertake all the duties of an executor by themselves, most people find that they need the assistance of a solicitor, particularly if they need to apply to the court for probate.

What is Probate?

Applying for probate is the process of asking the court to confirm the validity of a will and empower the executor to carry out the deceased’s wishes. Usually, banks and other organisations will not release large assets for distribution to beneficiaries unless the executor has obtained probate.

Sometimes it is not necessary to apply for probate, especially if the only significant asset of the estate is a property that is jointly owned with another person. We can advise you whether probate is necessary, or recommended, and prepare and lodge the relevant documents with the Supreme Court.

Do you need a Testamentary Trust?

A testamentary trust is a trust set up in your will that comes into effect after your death.

You might set up a discretionary testamentary trust because you want your assets to be distributed among your family members in the most tax-effective way. A testamentary trust can also be used if you are concerned about certain beneficiaries. For instance, you may be worried about a beneficiary who has creditors, who is an undischarged bankrupt, or is being sued. A testamentary trust, set up correctly, can help prevent this person’s inheritance being claimed to satisfy outstanding debts or legal claims.

Alternatively, you may be worried about a beneficiary who is likely to misspend an inheritance due to a drug or gambling problem. In that case, you can use a testamentary trust to ensure that this person’s basic needs are met, while not allowing them to fritter away capital. Finally, a testamentary trust can provide for a child or adult with disabilities, ensuring that the money you leave is used appropriately to meet their needs over the long term.

Farm succession

A farm is a particularly complex asset to include in your deceased estate. In most cases, the farm itself is a valuable asset that is essential to conducting the business of farming.

If passing on your farm to the next generation is important to you, you can take steps to manage farm succession. It does require you to begin your estate planning well before the farm transfers to the next generation, with a focus on open communication and realistic expectations. As with any other family-owned business, the enterprise will benefit if everyone knows what to expect and there is a smooth transition when the time comes.

We can work with you to discuss your plans and circumstances and to implement strategies to help you achieve your objectives.

If you need help, contact one of our lawyers at [email protected] or call 02 6642 3411 for expert legal advice.