Wills & Estate Planning
How can we help with your Estate Planning?
If you wish to make a will, update your will, make a new will, appoint a guardian or attorney or revoke (cancel) the appointment of a guardian or attorney, we can advise you how best to proceed to put appropriate arrangements in place and to give effect to your intentions.
We can assist you by:
- Advising on your options for the distribution of your estate upon death, having regard to your circumstances and any potential disputes;
- Discussing options and the consequences of distributing your estate or part of it during your lifetime;
- Preparing a will appointing a trusted person or persons as executor and to give effect to your wishes and objectives;
- Preparing a power of attorney, enduring power of attorney, and/or appointment of enduring guardian in consideration of your values and wishes and that best suits your needs;
- Discussing your superannuation, which often forms a significant portion of the value of your estate and considering the relevant laws that apply when nominating your beneficiaries.
Making a Will
Any adult, provided they have the capacity to understand the legal effect of doing so, can make a will. A will appoints a trusted person or persons as your executor and nominates the beneficiaries of the assets you have accumulated throughout your life. Your executor’s role is to administer your estate and distribute your assets in accordance with the wishes set out in your will.
Find out more about choosing an executor.
A will can also indicate to your family and friends your wishes on other important matters, such as who you want to be the guardians of minor children or your wishes regarding funeral arrangements.
What happens if I die without a Will?
Dying without leaving a valid will is referred to as dying “intestate”. If this happens, your assets will be divided according to the rules of intestacy, which is a statutory formula set out in legislation. In such cases, your assets may not necessarily go to your intended beneficiaries or be divided as you may have otherwise wished. Making a will is an important step in ensuring your wishes are carried out. It provides clarity for your loved ones and helps minimise estate disputes.
Having a valid will can also significantly reduce the cost to your estate (or next of kin) of obtaining the authority of the court to administer your estate. Where you have left a will, this “authority” is known as Probate. Where there is no will, Letters of Administration will need to be obtained. An application for Probate is a relatively straightforward process when compared to an application for Letters of Administration, which, because of the additional requirements of the court, can, depending on your circumstances, become a very complex, drawn out and costly process.
Asset Protection and Testamentary Trusts
Asset protection involves structuring your affairs to minimise financial loss and to protect property. When planning your estate, there are steps you can take to ensure your assets are protected for future generations and that your estate is left only to those you intend to benefit.
Holding assets in trust can help protect them from claims by third party creditors in the event of bankruptcy, insolvency, court, or family law proceedings.
A testamentary trust is a trust established under a will. There are different types of testamentary trusts. Perhaps the most common is the discretionary trust contained in a will that comes into effect when the testator (will maker) dies. A trustee is appointed to manage the trust and can distribute assets to beneficiaries nominated in the will according to the terms of the trust. The flexibility and control in distributing assets has potential benefits including the protection of vulnerable “at-risk” beneficiaries such as minors, those with intellectual disabilities or drug and alcohol addictions. As the beneficiary does not own the assets of the trust, a testamentary discretionary trust can help protect the assets from claims by third parties.
Trusts, however, are complex and advice and guidance is important to ensure they are compliant, structured to achieve the required objectives, and that any stamp duty and taxation implications are considered.
Our comprehensive approach to estate planning ensures that clients address a range of important legal issues that can impact them personally and financially during their lifetime and when they die. We can help to implement strategies so you can make the most of your hard-earned assets, protect your loved ones, and minimise the potential for estate disputes and contests.
If you need assistance, contact in*********@es***.au or call 0451 530 877 for a no-obligation discussion and for expert legal advice.