Wills & Estates

Our highly experienced lawyers have a depth of knowledge in succession law and can help with all your estate planning and estate administration needs.

Do you need a new will?

Everyone needs to make a will. Even if you already have a will, there is a good chance that it needs to be reviewed and possibly updated.

A will performs a number of different functions. At a minimum, it sets out how your property should be distributed after your death. For instance, if you are married with children, your will may state that your spouse receives the entire estate unless they predecease you, in which case your children inherit in equal shares.

A will can also leave instructions for the executor to follow, such as a plan for your funeral, or your wishes for the care of your pets. If you are a parent, one of the most important functions of a will is to record your wishes for the care of your children, and to make arrangements (such as a testamentary trust) for the financial support of dependents.

Do you need a Power of Attorney?

All adults should consider making a Power of Attorney (POA). This allows you to nominate someone, called the “attorney”, to make financial decisions on your behalf if you are temporarily or permanently unable to make decisions for yourself. It is important that you understand that a POA gives the attorney considerable power. An attorney has a duty to only make decisions that are in your interests, and they must avoid benefiting themselves, but this situation is obviously open to abuse. You should make this selection carefully and also independently, away from the influence of everyone else, and especially not because of pressure from the proposed attorney.

Do you need an Enduring Guardian?

An Enduring Guardian is someone you appoint to make lifestyle and health decisions on your behalf when you do not have the capacity to make those decisions for yourself. You can decide which decisions you want your Enduring Guardian to be able to make. For instance, you may empower them to make decisions about where you live, what services you receive at home, and what medical treatments you receive.

While you still have capacity, you can revoke the appointment of an Enduring Guardian at any time. Once you lose capacity, the appointment is enduring (unless someone applies to the court to terminate the appointment).

Do you have a claim against a deceased estate or wish to dispute a will?

Family relationships can be very complicated, and these complications can be magnified when a family member’s deceased estate is divided. While most people think that they have the right to leave their property to whomever they like, this is not technically true. The law in NSW says that you must make reasonable arrangements for the disposal of your estate. So, if someone close to you has been unreasonable by excluding you from their will, or left you less than you need to meet your financial obligations, you may ask to have this decision overruled, provided you are an eligible person according to the legislation.

Although estate disputes can end up in the Supreme Court, it is almost never recommended to allow a dispute to get to this point. A court hearing is time-consuming, stressful, and expensive. Most disputes over a will are actually resolved well before a court hearing, usually when the executor of the estate (or their solicitor) sits down with the claimant’s solicitor. Alternatively, the parties might reach agreement through mediation, saving the estate the cost of a legal battle through the courts.

Do you need a Testamentary Trust?

A testamentary trust is an instrument that you can set up in your will that only comes into existence 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. However, a testamentary trust can also be used because you worry about your 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 prevent this person’s inheritance being claimed to satisfy outstanding debt or legal claims.

Alternatively, you may be worried about a beneficiary who is likely to misspend the inheritance, because they have 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, you may wish to provide for a child or adult with a disability, ensuring that the money you leave is used appropriately to meet their needs over the long term.

Do you need to include a SMSF in your estate planning?

If you have your own self-managed superannuation fund (SMSF), you must give consideration to what happens to the fund when you pass away. It is important to know that your SMSF is not automatically included in your deceased estate and distributed according to the wishes in your will.

As your superannuation could be one of your largest assets, you will want to ensure that your chosen beneficiary has access to these funds, especially if you die unexpectedly and have dependants who need ongoing support. A solicitor can help clarify how your SMSF interacts with your will and put together a plan to make sure you can take care of those you love.

If you need assistance, contact one of our lawyers at [email protected] or call 02 49691800 for expert legal advice.