Wills & Estates
Wills & Estates
Effective estate planning is essential to help ensure that your assets maintain value, are distributed in line with your wishes, and for succession planning and business continuity. We take an inclusive approach to implement strategies to deal not only with the inevitable, but to manage unforeseen events like illness and incapacity.
The holistic approach to estate planning
Estate planning is important for everybody. Even those with simple family structures and modest assets should consider the best way for their estate to be managed after they die, and how their legal, financial and health affairs should be handled if they are incapacitated. Having an effective Will is one aspect of estate planning, but other issues such as superannuation, trusts and the manner in which your property is held need careful consideration to avoid unintended consequences.
Good estate planning requires:
- Preparing for the inevitable – having a valid Will to direct who should receive your assets when you die (your beneficiaries) and who should be trusted to administer your estate (your executor / trustee).
- Planning for the unexpected – ensuring powers of attorney (financial and lifestyle) and medical decision maker appointments are in place so your affairs can be appropriately managed if you are unwell or become incapacitated.
- Maintaining the value of your estate – protecting your assets and distributing them in the most tax-effective manner.
- Protecting beneficiaries – considering the use of trusts to safeguard vulnerable beneficiaries from third party creditors, estranged partners, or depletion of their inheritance due to incapacity, disability or dependency.
- Succession planning – ensuring arrangements are in place for business and company interests, whether those interests are to be wound up or handed down through generations.
- Understanding where potential family provision claims (i.e. challenges to your estate) could arise and implementing strategies to minimise such claims.
- Considering your superannuation and your eligible beneficiaries, and putting in place Binding Death Benefit Nominations, as relevant.
Making a Will
Anybody aged 18 and over can make a Will, so long as they have the capacity to understand what they are doing. People under 18 can only make a valid Will if they are married or have a court order to authorise making a Will.
A Will provides details of how your assets will be distributed upon your death and appoints one or more trusted person/s as your executor / trustee. A Will can also contain provisions regarding how your remains should be dealt with and who will act as a guardian for any minor children.
The effect of a trust is the separation of the beneficial from the legal ownership of property. Holding assets in trust can protect them from claims by third party creditors in the event of bankruptcy, insolvency, court or family law proceedings.
A testamentary trust is a discretionary trust contained in a Will that comes into effect when the testator dies. A trustee is appointed to manage the trust. The flexibility and control in distributing assets has potential benefits including the protection of vulnerable beneficiaries. Even modest estates may benefit from having a testamentary trust, particularly where the testator is part of a blended family. Your lawyer can discuss your circumstances and whether a testamentary trust is right for you.
Retirement living and aged care
Aged care is regulated and assessed under Commonwealth laws. Entry into a retirement village does not result in an automatic entitlement to aged care services which are government funded. Potential recipients must first be assessed.
Whether you are considering retirement village living or aged care services, meeting with your legal and financial team can help you to understand the type of arrangement you are entering, determine the most effective strategy for your circumstances and plan or restructure your affairs accordingly.
Powers of Attorney and medical decision makers
A power of attorney allows you to appoint a person (attorney) to act on your behalf in relation to your financial or personal matters, or both. A financial matter includes any matter that relates to your financial or property affairs.
Powers of attorney are flexible documents that allow you to place limits on your attorney’s power. You can also appoint one or more people, together or separately, to act as your attorney.
An ‘appointment of medical decision maker’ allows you to appoint a person (your medical decision maker) to make decisions for you in relation to your medical treatment if you are unable to make them yourself. Your medical decision maker’s authority to act on your behalf will only come into effect in the event that you do not have capacity to make decisions for yourself. Additionally, you may wish to effect an ‘advanced care directive’, which can set out (among other things) what treatment(s) you may wish to receive, or not receive, in certain circumstances. You will need to sign your advanced care directive in the presence of a registered medical practitioner (e.g. your GP).
It is wise to have these documents prepared by a lawyer who can explain the nature of each, the powers they provide, and when they may come into effect.
Deceased estates and estate administration
Being the executor of a Will comes with a great deal of responsibility and involves a range of legal duties. We can advise you (the executor) of these duties, apply for a grant of Probate if necessary, and assist with the administration of the estate.
Probate is a grant made by the Supreme Court of Victoria allowing the executor named in a Will to distribute the assets of a deceased person according to their Will. A grant of Probate may not be necessary in all circumstances, and we can advise you regarding this.
If a family member has died without leaving a valid Will, we can apply for Letters of Administration on your behalf so the estate can be distributed and finalised.
Family Provision Claims
One of the most common types of cases we handle is where an aggrieved family member claims further or better provision from a deceased estate. If you think you should have been included in a loved one’s Will or your inheritance was less than you deserved, you may be eligible to make a claim for family provision. The Administration and Probate Act 1958 (Vic) states that the following people are eligible to make a claim:
- current spouse or domestic partners of the deceased,
- children, stepchildren, and those treated as a natural child of the deceased,
- former spouses or domestic partners of the deceased in certain circumstances,
- a registered caring partner of the deceased,
- grandchildren of the deceased,
- in some circumstances, a spouse of a child of the deceased.
In determining whether to make a family provision order, a court considers a number of factors. Many such claims settle out of court and our experienced team will do all that they can to negotiate a fair settlement on your behalf.
We can help
We have been assisting individuals and families with estate planning and administration matters for over 40 years. We can help you to:
- apply for a grant of probate (where the deceased leaves a Will) or Letters of Administration (where there is no Will),
- administer the estate pursuant to the deceased’s Will or the laws of intestacy – this may involve notifying banks, share registries and superannuation funds to arrange for the transfer of money or payment of death benefits, transferring real estate to the executors or beneficiaries, and distributing the estate,
- deal with a range of estate disputes including challenges to the validity of a Will and family provision claims, and
- contest a Will or estate in circumstances where proper provision has not been made for you.