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Wills & Estates

One of the most complicated and heavily contested areas of law relates to the administration of Wills and estates. Unfortunately, very few people have their legal affairs properly organised in a manner which will make the passing of their assets upon their deaths stress free for grieving family members.

Instructing a lawyer to advise in this important area can help protect assets, save on taxes such as capital gains tax, and avoid unnecessary duty when transferring property. We can prepare an estate plan tailored to your individual circumstances.

Effective estate planning generally includes consideration of the following:

  • Preparing for the inevitable – having a valid Will to appoint an executor/trustee and to determine who receives your assets when you die.
  • Planning for the unforeseen – ensuring a Power of Attorney is in place so your legal and financial affairs can be dealt with by somebody you trust for your convenience, as you age, or if you are incapacitated.
  • Preparing an Advance Care Directive to make clear your wishes concerning your future health care, end of life, and living arrangements, and to appoint a substitute decision-maker if you are incapacitated.
  • Protecting vulnerable beneficiaries – creating testamentary trusts to safeguard at-risk beneficiaries from third party creditors, estranged partners, or unwise spending due to incapacity, disability, or dependency.
  • Minimising the potential for a family provision claim to be made against your estate by implementing strategies to limit such claims.
  • Business and farm succession planning – working with business owners and rural families to ensure that appropriate arrangements are in place to deal with farming and business interests through future generations.

Preparing a Will

Regardless of the size of your asset pool it is important to have a valid Will. A valid Will determines who should benefit from your estate when you die (your beneficiaries) and who will be responsible for administering it (your executors). A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.

A common mistake when preparing a Will is to use a ‘Do It Yourself Will Kit’. The cost of rectifying a DIY Will in the event of a challenge to the Will far outweighs the cost of initially consulting a lawyer to advise you and prepare the document. We take into account your family structure and your personal and financial circumstances to tailor a Will that is right for you.

We recommend reviewing your Will regularly, particularly when your personal and financial circumstances change. Important life events such as marriage, divorce, and the birth of a child; or financial changes like receiving an inheritance or buying a business or property, are milestones that could trigger the need to update your Will and overall estate plan.

Testamentary Trusts

When planning your estate, there are steps you can take to help protect assets for future generations and to ensure that your estate is left only to those you intend to benefit. A testamentary trust is a discretionary trust contained in a Will that comes into effect when the will maker dies.

The effect of a trust is the separation of the beneficial from the legal ownership of property. A trustee is appointed to hold assets and manage the trust in accordance with the terms of the trust deed. Holding assets in trust can help protect them from claims by third party creditors in the event of bankruptcy, insolvency, court or family law proceedings. Trusts can also assist with more favourable taxation outcomes.

What happens when somebody dies without a Will?

Dying without a Will also means that the next of kin will usually have to apply to the court for letters of administration before dealing with the deceased’s estate. This can result in additional work and costs for the grieving family.

Asset protection and succession planning

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

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.

How can we help?

There are many reasons to have an estate plan, the most obvious being to protect your wealth and to ensure that your hard-earned assets are left to your intended beneficiaries. If you would like to learn more about how estate planning could benefit you and your family, please get in touch with our experienced estate planning lawyers.

If you need assistance, contact one of our lawyers at [email protected] or call 08 8762 3600 for a no-obligation discussion and for expert legal advice.