Wills & Estates

Planning for your family’s future after you are gone is an important legal task. Taking time to make an effective legally binding Will provides clarity for your family and can save them unnecessary costs and stress after you die.

We can help:

advise you regarding estate and probate laws;
set up family and testamentary trusts to help protect assets and beneficiaries;
advise you regarding your choice of executors and trustees;
minimise the chance of your Will being contested or subject to dispute;
plan for any future incapacity so that somebody you trust can make decisions about your finances, your medical treatment or living arrangements
if you are unable to.

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 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 can be simple, or more complex, by including a testamentary trust. A testamentary trust is created for the benefit of your loved ones after
you die and 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.

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 windfall
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, we can review it and advise whether it might be necessary to make changes to reflect your new circumstances.

What happens if I die without a Will?

Dying without a Will is referred to as dying intestate. In such cases the deceased person’s estate is distributed in accordance with a statutory formula. The rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin. While this formula is designed to reflect society’s ‘expectations’, it may not consider the real wishes of the deceased nor his or her unique circumstances.

Administering an estate – when somebody dies

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
the person 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 unfamiliar to them or 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 the potential of a family provision claim being made against the estate. We can help you carry out your legal responsibilities as executor or administrator and provide advice and guidance to ensure the estate is administered as smoothly and effectively as possible.

What is a grant of Probate?

An executor of a Will may need to apply for a grant of probate before the estate can be distributed to the beneficiaries. Probate is a grant made by a court that proves the Will of a deceased person and authorises the executor to deal with the estate. This typically involves paying estate debts, distributing gifts or transferring property, arranging estate returns and generally finalising the estate as directed in the Will.

Applying for probate requires the preparation of affidavits, advertising the intention to apply for probate, and filing the application with the Supreme Court. A grant of probate may not be required to distribute an estate and your lawyer can advise you whether probate is necessary or recommended in your circumstances.

Letters of Administration

An application for letters of administration is made by an interested person when a person dies intestate, or the executors named in a valid Will are no longer alive or are unable to fulfil the role.

A grant of letters of administration will appoint the applicant as administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

Effective estate planning is essential to help protect your assets and family. Dealing with a deceased estate can be distressing and often involves complex issues at a time of grief and loss. Our experienced and compassionate team can help with all aspects of estate planning, probate, and estate administration.

If you need assistance, contact [email protected] or call 07 4133 1111 for expert legal advice.