Wills
& Estate Planning

Estate planning means looking out for you and your family by planning for the unforeseen and the inevitable. Instructing a lawyer in this important area can help protect assets and beneficiaries, minimise potential disputes, and ensure that somebody you trust is ready to step in and manage your affairs if you are temporarily or permanently unable to manage them yourself. We provide a comprehensive wills, estate planning and estate administration service and can assist with:

• Preparing / reviewing / updating your will
• Testamentary trusts / family trusts
• Applying for probate / letters of administration
• Estate administration / advising executors and administrators
• Family Provision claims or estate litigation
• Mediations to resolve conflict and estate disputes
• Working with accountants on the implementation and administration of trusts
• Structuring life interests to protect spouses and stepchildren in blended families
• Farm succession planning

Preparing a Will

An effective estate plan starts with a valid will that sets out your testamentary wishes and provides clarity for your loved ones. Your will should appoint one or more executors who will be responsible for administering your estate, and direct how your assets will be left and divided between your beneficiaries. You may also appoint guardians for minor children and provide directions for funeral arrangements.

When making a will, you may also need to consider how you (and your partner, if relevant) may wish to provide for any children from a previous relationship. If there are certain individuals you wish to exclude as beneficiaries, your decision might lead to a potential dispute over your estate and a lawyer can provide guidance in this area. You might also consider how your beneficiaries’ inheritances will be taxed, and structure your affairs to make the most of your accumulated assets.

Your lawyer will consider your personal, family, and financial circumstances to recommend different structures and strategies to achieve your estate planning goals.

Testamentary Trusts

When planning your estate, there are steps you can take to help protect assets for future generations. Testamentary trusts can help protect your estate from third party claims, ensuring that your assets are used to benefit those you love.

If you have minor or vulnerable beneficiaries, a testamentary trust might be the right tool to help you look after them. As the name suggests, a testamentary trust is made under a will and begins at the death of the testator. Trusts enable you to financially support someone without giving that person direct control of the assets. This lets you look after your children, grandchildren, and even great-grandchildren. Trusts can also be tax effective, and you can discuss these potential benefits with your lawyer and accountant.

As with all forms of estate planning, a testamentary trust is not right for everyone. The administration of a trust costs money each year that it operates. This will include annual tax and auditing costs and may also include the trustee’s professional fees. We can help you decide whether a testamentary trust is right for your circumstances.

Deceased Estates and Estate Administration

After a person dies, someone needs to look after their property and finalise their affairs. This is typically referred to as “administering an estate” and is carried out by the executor/s named in the deceased’s will or an administrator who may be appointed by the Court if a person dies intestate (without leaving a will).

Before administering an estate, it is often necessary to obtain a grant of probate from the Supreme Court. The grant of probate “proves” the will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the will. In the case of a person who dies intestate, a family member will usually need to apply to the Court for letters of administration before the estate can be distributed and finalised. The estate will be distributed in accordance with a statutory formula prescribed by legislation.

Executors and Administrators

Executors and administrators have many responsibilities which typically include:

• making funeral arrangements
• identifying and protecting assets
• applying for a grant of probate or letters of administration
• liaising with the deceased’s account providers and government authorities
• claiming funds under superannuation and life policies
• distributing assets, and transferring property to beneficiaries

Sometimes, an executor or administrator will need to deal with issues 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 an estate dispute or testators’ family maintenance claim. We can help you through the legal process, providing advice and guidance so you can carry out your duties and administer the estate as smoothly and efficiently as possible.

If you need assistance, contact Mallory at [email protected] or call 03 5872 1966.