Wills & Estates

Estate planning involves arranging your affairs to best manage the unforeseen and the inevitable. It requires evaluating your financial and personal position and reviewing these circumstances at major stages throughout your life such as:

• the birth of a child
• separation or divorce
• commencing a new domestic relationship
• the passing of a beneficiary or executor named in your Will
• selling or purchasing major assets including real estate
• starting or investing in a business venture
• receiving an inheritance or disposing of a major asset
• a change in your health circumstances

Effective estate planning goes beyond preparing a valid Will. It involves strategies to protect assets and vulnerable beneficiaries, structures to legally minimise tax, and processes to ensure your affairs are managed by somebody you trust if you are unable to do so yourself.

Getting your Will right

Your Will is your voice after you die. It is the legal document which details who should receive your assets (your beneficiaries) and who will have the responsibility of carrying out your wishes (your executor). Your Will can also appoint guardians for your children, if required.

Whether your Will is simple or complex, involving a lawyer to guide you through the process can help structure your estate to achieve its full potential. We will consider your individual circumstances and important matters such as taxation and superannuation. We will also consider your family situation and take steps, if necessary, to minimise the potential for disputes to arise after you die.

Estate planning for blended families

There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and personal assets may fluctuate from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be implemented. The important thing is to discuss your circumstances and objectives with your lawyer so that your wishes can be properly set out in your Will and other estate planning documents.

Testamentary trusts

A testamentary trust is a discretionary trust contained in a Will that comes into effect when a testator dies. A trustee is pre-appointed to manage the trust and distribute assets to beneficiaries in accordance with the rules outlined in the trust deed.

Holding assets in trust can help protect vulnerable beneficiaries and safeguard assets from claims by third party creditors. The flexibility and control that a trust allows in distributing assets can also be advantageous when it comes to taxation.

Trusts are complex and advice and guidance is important to ensure the trust is compliant and structured to achieve the required objectives.

Enduring powers of attorney

An enduring power of attorney enables you to appoint a person to make certain personal and financial decisions on your behalf if you lose capacity to make those decisions yourself. You should only choose somebody you trust to act as your attorney, as they will be making important decisions on your behalf which must be made in your interests. It is also a good idea to talk to the person you wish to appoint and make sure they are comfortable in that role and able to assist.

Administering a deceased estate

If you have lost a partner, a family member, or are the executor of an estate, there are many practical, financial, and legal matters to deal with. We can guide you through the steps involved, keeping you informed of your obligations as executor or administrator while finalising the estate.

We can help with:

• Locating the Will and interpreting the provisions
• Applying for Probate of the Will in the Supreme Court or Letters of Administration
• Identifying estate assets and liabilities and obtaining valuations
• Selling or transferring property
• Collecting assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
• Paying estate debts including mortgages, funeral costs, and testamentary expenses
• Advising on family and testamentary trusts and administering trust funds
• Distributing bequests and inheritances to beneficiaries
• Organising information for estate tax returns
• Family mediation and negotiation
• Contesting Wills and defending estate litigation in the Supreme Court

Probate and letters of administration

When a deceased person has a Will, you may need to apply for a grant of probate before the estate can be distributed to the beneficiaries. If the deceased person does not have a Will, you may need to apply for letters of administration.

Applying for probate requires an application with supporting documents to be filed with the Supreme Court. When probate is granted, the Court deems the deceased’s Will to be their last Will and to be valid, which then authorises the executor to distribute the estate according to the Will.

A grant of letters of administration, in the case of an intestate estate, operates in a similar way, providing authority for the administrator to deal with the estate.

Asset protection and succession planning

Asset protection involves structuring your affairs to eliminate or reduce financial loss and to safeguard 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.

If you own a business or farm, it is important to have a succession plan. Having an ‘exit strategy’ is essential to determine what happens if a certain event occurs such as divorce, unexpected death or illness, disability, retirement, or bankruptcy. Without clear processes to deal with these events, the value of your share of the business or farm may be in jeopardy as well as its ongoing operations.

Our experienced lawyers can provide tailored advice and solutions to help reduce the impact of an unforeseen event. 

Estate disputes and family provision claims

The validity of a Will may be challenged on the basis that it is void for lack of formality (not correctly signed/witnessed), lack of mental capacity (the testator was not of sound mind when the Will was made) or because the Will was made by the testator under duress or in fraudulent circumstances.

A family provision claim may be made by an eligible person seeking a share or greater share from an estate if it can be shown that a deceased’s Will (or a proposed distribution of an intestate estate) does not make adequate provision for the claimant. The claimant must be an ‘eligible’ person (as prescribed in the relevant state or territory legislation) and various factors will be considered in determining such a claim. A successful claim can result in the terms of a Will or distribution of an intestate estate being altered in favour of the claimant.

There are many reasons why an estate might be disputed, or a Will perceived to be unfair. For example, the testator may have failed to update an old Will to take account of changing personal or financial circumstances, or to take into consideration money or property that was gifted to a beneficiary in need during the testator’s lifetime. In such cases the distributions made in the original Will may now seem disproportionate between the beneficiaries.

Estate disputes and family provision claims may proceed to court, but most are settled through negotiation and mediation. These matters are generally complex and emotional. Whether you are disputing a Will or defending it, we can explain your legal position and help you achieve a successful outcome in the most cost-effective way possible.

Our experienced team can help structure your estate to achieve its potential. We will consider your individual circumstances and prepare documents to provide clarity and certainty for you and your family and to minimise the possibility of disputes.

If you need assistance, call 03 5166 1858 (Traralgon) or 03 5127 2666 (Moe) or email [email protected] for expert legal advice.

We provide assistance Australia wide via video conference or other electronic communication.