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Estate planning
On this page
Wills
Every adult should have a Will. Even though legislation exists in case you do not have a Will, the result could be unsatisfactory and inappropriate to those left behind.
So why use a lawyer to make your Will? Given the complexity of laws governing succession, including taxation issues and claims by family members, you need:
- Information to understand what you need to consider in making your Will
- Assistance to provide a Will which fulfils your expectations
Powers of Attorney
Your Will determines what happens after you have died. Your Power of Attorney provides for you during your lifetime by allowing someone you trust to make decisions as to your financial affairs.
A Power of Attorney is a very powerful document. We will assist you to:
- Understand how it can, and should, be used
- Tailor it to suit your needs
Appointment of Guardian
While the Power of Attorney allows someone to make decisions as to financial matters, the Appointment of a Guardian allows someone to make decisions about you and your needs, when you are unable to do so. These decisions can include:
- Where you should be accommodated
- What medical or dental treatments you need
- What personal care services you need
We can help you by:
- Guiding you as to whether you ought to appoint a Guardian
- Ensuring that you, and the Guardian you appoint, understand the effect of the appointment
Estate planning
Given the complexities of taxation laws, family law disputes and creditor claims, and given that most of us now have two significant assets, namely, the family home and superannuation (including life insurance), often a simple Will is not enough to protect your family.
We can assist you in making a plan suitable to you and your family. This involves:
- Identifying and understanding the nature of your assets and liabilities
- Advising you on options available for the giving away of your assets by Will
- Guiding you as to the impact of taxation laws on your assets and on the options you have considered for your Will
- Structuring a plan which balances the need to protect your wealth and the imposition of taxation laws
- Working in conjunction with your accountant and/or financial advisor to maximise the benefits for your family
Probate Applications and administration
If you are the Executor of a Will, you need to carry out the intentions of the deceased person according to their Will.
In most cases, you need to obtain a Grant of Probate from the Supreme Court. This, principally, is a "licence" to you, as Executor, to deal with the assets in the estate.
We can help you by:
- Working with you to identify what the assets of the estate are
- Advising you as to how the Will determines the treatment and distribution of those assets
- Preparing the Application to the Court and explaining the process to you
- Assisting you to carry out the intentions of the Will, whether by converting the assets to cash and distributing the cash, or transferring specific assets to the beneficiaries
- Ensuring that you complete the administration of the estate according to law
- Protecting you, where possible, from claims by creditors or disaffected family members of the deceased
FAQs
FAQs - Wills
What should I consider when making my Will?
Can my Will indicate my wishes in respect of cremation or burial?
Why should I make a Will?
It is important that you have a current Will. If you die without leaving a valid Will you are deemed to have died intestate and it is necessary for a Court to appoint an administrator to deal with your estate. Your estate will be distributed according to rules set by Government legislation. These rules vary from state to state, but generally the distribution is to your spouse, children and then other next of kin such as brothers, sisters, parents.
The Government legislated way of distributing your estate may not suit your family needs. Thus, it is important to make a Will so you can ensure that your estate is distributed to those you wish to take care of.
What does "Executor" mean?
The Executor is the person or persons whom you appoint to administer your estate (for further information refer to Probate FAQs). We recommend that there be two Executors or one Executor but if he or she dies, then another Executor is appointed. This is merely to protect against the situation of an Executor dying before you and before you have a chance to update your Will for the appointment of a new Executor.
An Executor should be someone you trust to deal with the assets in your estate in accordance with your wishes.
What should I consider when making my Will?
When making a Will you should consider the following:
- Who you wish to appoint as your Executor or Executors.
- Who you wish to be named as a beneficiary or beneficiaries of your estate.
- The amount or share of your estate to be given to each beneficiary.
- Whether you wish for specific items to be given to specific beneficiaries.
- If you have children under the age of 18, who you wish to appoint as guardian of your children.
- Whether you wish to stipulate burial or cremation instructions.
When should I revise my Will?
There are a number of instances where you should consider revising your Will. These include:
- If you change your name, or anybody named in the Will changes theirs;
- If an Executor dies or becomes unwilling to act as Executor or becomes unsuitable due to age, ill health, long term absence from Australia or any other reason;
- If a beneficiary (someone who has been left something in the Will) dies;
- If you have specifically left any property which you subsequently sell or give away or put in trust or into a partnership or which changes its character. This applies particularly to specifically bequeathed shares in a company which restructures its share capital;
- If you marry or divorce; or if you have children (including adopted or fostered children);
- If you enter into, or end, a de facto relationship.
In any event, remember that your Will should not be thought of as static. You should consider and, if necessary, amend it regularly (say, every 5 or so years).
Can my Will indicate my wishes in respect of cremation or burial?
Yes. However, there is not often a formal reading of the Will and a funeral or cremation is often organised prior to the Will being read. It is for this reason you should make your family and Executor aware of your wishes in respect of a cremation or burial.
Where should I keep my Will?
Once your Will has been signed, it should be kept in a safe place with your important documents, or in a bank safe deposit box. It is most important that your Executor and major beneficiaries be made aware as to where your Will is located.
We hold numerous Wills on behalf of clients and are more than happy to retain it on your behalf. There is no fee for this service.
FAQs - Powers of Attorney
What is a "Power of Attorney"?
What does it mean if it is an "Enduring Power of Attorney"?
Should I register my Power of Attorney?
Can a Power of Attorney be revoked?
What can be signed under a Power of Attorney?
Are there any instances where a Power of Attorney cannot be used?
What is a "Power of Attorney"?
A Power of Attorney is a document whereby you give someone the power to do, on your behalf, anything that you may lawfully authorise an attorney to do. This is very general and covers such things as signing cheques, withdrawing money from bank accounts, depositing money into bank accounts, buying or selling shares, buying or selling real estate, entering into legal agreements and so on. However, a Power of Attorney cannot be used to delegate to another person your responsibility a s a Director or other officer of a company, or as a Trustee of a trust (including any role as executor of an estate).
What does it mean if it is an "Enduring Power of Attorney"?
An enduring Power of Attorney is a Power of Attorney that continues to be effective, even though after you have signed it, you might lose mental capacity (such as by being in a coma, suffering memory loss, dementia and so on). The benefit of your Power of Attorney being enduring is that your attorney can continue to look after your financial affairs, even though you may not be aware of what is happening.
Should I register my Power of Attorney?
A Power of Attorney essentially only needs to be registered for the purpose of dealing with real estate (whether buying, selling, leasing, mortgaging or otherwise dealing with the title to property). Where the Power of Attorney is only going to be used for dealing with, say, bank accounts or shares, registration is, generally, not necessary.
Can a Power of Attorney be revoked?
A Power of Attorney can be revoked in three instances:
- Express revocation. This means that you may tell the Donee of your Power of Attorney that the Power of Attorney is revoked and the Power of Attorney will then be immediately revoked. The difficulty of using only a verbal communication to revoke a Power of Attorney is being able to prove it at a later stage if a dispute arose. It is for this reason, we always recommend that revocation be in writing and, of course, communicated to the Donee of the Power of Attorney.
- Death. The Power of Attorney dies with the Donor. From date of death onwards, the financial affairs of the Donor are governed principally by the Will of the Donor.
- Overriding legislation. There have been many instances where the Donee has abused the authority under the Power of Attorney. Accordingly, legislation exists to permit the revocation of the Power of Attorney where that abuse or misuse of the authority occurs.
What can be signed under a Power of Attorney?
A Power of Attorney can be used to cover such things as signing cheques, withdrawing money from bank accounts, depositing money into bank accounts, buying or selling shares, buying or selling real estate, entering into legal agreements and so on.
Are there any instances where a Power of Attorney cannot be used?
There are two exceptions to the width of an authority under a Power of Attorney, these being as follows:
- The Power of Attorney will not be effective in delegating to another person any responsibility you may have as a Trustee. This includes where you are an Executor of a deceased estate. Separate laws relate to delegation of authority as a Trustee.
- The Power of Attorney equally will not be effective to delegate your authority in your capacity as a director of a company. Delegation of authority by a director is governed by the Corporations Act.
Appointment of Guardian
What is an Appointment of Guardian?
If I have a Power of Attorney is it necessary to make an Appointment of Guardian?
Who should be appointed as Guardian?
What is the extent of an Appointment of Guardian?
How is an Appointment of Guardian made?
Can an Appointment of Guardian be revoked?
What is an Appointment of Guardian?
An Appointment of a Guardian is the appointment of someone to make decisions on your behalf concerning your wellbeing when you are not in a position to do so. For instance, if you are injured or ill and are unable, due to the injury or illness, to make decisions as to what medical treatment or care should be provided to you, then the Appointment of a Guardian will enable that person to make those decisions for you.
If I have a Power of Attorney is it necessary to make an Appointment of Guardian?
Frequently, the question arises as to whether it is necessary to have an Appointment of a Guardian when there is already a Power of Attorney in existence. A Power of Attorney is limited to dealing with matters of a financial nature. It has been our experience that people in the medical field often will accept the Attorney appointed under a Power of Attorney as being the person to make decisions in respect of a person's care or needs. However, if this was challenged by another interested party, then the Power of Attorney would be inadequate to enable the person granted the Power to make decisions as to medical care and treatment.
Who should be appointed as Guardian?
An Appointment of a Guardian is a very important issue and must be considered taking the wishes of the whole of the family into account. It may be that there should be more than one Guardian appointed and that those people should act jointly. It would be difficult to appoint more than three Guardians given that decisions would, from time to time, be needed to be made on an urgent basis and obtaining the consent of all appointed Guardians for the one decision may be difficult.
What is the extent of an Appointment of Guardian?
Usually the Guardianship appointment is limited to making decisions of a lifestyle nature, primarily in respect of medical treatment and care. Therefore, the usual provisions as to what the Guardian may determine are as follows:
- to decide where you should live
- to decide what health care you should be given
- to decide what personal services you should be provided
- to decide as to what medical or dental treatment should be carried out on you
The responsibilities can be wider than those set out above, but they need to be carefully considered and the document carefully drafted to ensure that the intention is clear and effective.
How is an Appointment of Guardian made?
The Appointment of Guardian is a simple written document which we would prepare for you. The appointment needs to be signed both by the person making the appointment and the person or persons being appointed. The execution of the document must take place before a solicitor so that the terms of the appointment can be explained both to the appointor and the appointees.
Can an Appointment of Guardian be revoked?
The Appointment of Guardian can be revoked at any time by you provided, of course, that you have the mental capacity at the time to make that revocation. The method of revocation is by written instrument in the form prescribed under the Act.
The Supreme Court and the Guardianship Tribunal also have an overriding power to appoint a Guardian. If a Guardian is appointed by the Court or the Tribunal, then the appointment by written instrument is suspended while the Court or Tribunal Order applies.
FAQs - Estate Planning
What are the benefits of a Testamentary Trust?
What are the costs of set up and administration of a Testamentary Trust?
What issues should I consider when setting up a Testamentary Trust?
What is a Testamentary Trust?
In essence, a Testamentary Trust is a trust created in your Will, which only comes into existence upon your death.
What are the benefits of a Testamentary Trust?
The three significant benefits of setting up a Testamentary Trust are as follows:
- Taxation. A person under 18 who is a beneficiary of a Testamentary Trust will be treated, for income tax purposes, as a normal taxpayer. That means that a person under 18 can receive the tax-free threshold amount as provided for under the Tax Act. This is in contrast to a child under the age of 18 who is the beneficiary of a Trust created during your lifetime in which case, distributions of income to such a child under such a Trust are heavily taxed for any distribution exceeding $772.00 per annum.
There is also the benefit of being able to distribute income to beneficiaries of the Trust who are, during the financial year, receiving a low income, and, therefore, pay less tax as the recipient of income from the Trust. For instance, if a beneficiary is unemployed or currently out of employment (for instance, staying at home to look after the family) then a distribution of income to that beneficiary would be very tax effective. - Wealth Protection. If one of your intended beneficiaries had, as at the date of your death, become bankrupt or soon thereafter became bankrupt, a gift directly to that beneficiary would end up in the hands of the Official Trustee in Bankruptcy and would, therefore, be available for distribution to unpaid creditors. On a second note on this aspect, a beneficiary who is a businessman or a professional would also appreciate being able to leave assets within a Trust rather than in their own names. This is because the assets are then protected from claims by creditors or from claims for breach of professional duty.
- Family Law. As assets in a Trust in the nature of a Discretionary Trust are not assets of the beneficiary until the Trustee makes a determination, it certainly can be argued that the assets within the Trust should not form part of the assets of the marriage. However, the Family Court is a very intrusive Court and, depending upon factual circumstances, the Court has intervened into Trusts or has taken account of assets within the Trust when making a decision as to the splitting of assets between spouses. Therefore, although setting up a Testamentary Trust is not perfect in preventing any claim by a spouse of a beneficiary, there may still be scope to isolate the assets of the Trust from any Family Court proceedings by the spouse of a beneficiary.
What are the costs of set up and administration of a Testamentary Trust?
As the Testamentary Trust is created by virtue of your Will, it only comes into existence upon your death. Therefore, unlike trusts created inter vivos (that is, during your lifetime), there are no stamp duty consequences nor is there the need to administer a trust during your life time (administration meaning such things as tax returns, appointment of trustees and so on).
What issues should I consider when deciding to set up a Testamentary Trust?
The critical issues in deciding to set up a Testamentary Trust are as follows:
- The appointment of trustees. As the trust may remain in existence for up to 80 years after your death, it is important to carefully consider who will be the trustees. However, you would not be expected to appoint someone who you believe will survive you for 80 years, since the Trustee Act permits the resignation, retirement and appointment of trustees. It is also likely that the trust will be wound up well within the 80 year timeframe.
- Properly determining the assets to fall into the Testamentary Trust. There would be a number of assets which would not be appropriate to have dealt with under the Testamentary Trust, such as household chattels, motor vehicles, original artworks, and so on. You need to carefully consider what assets should fall into the Testamentary Trust and where there are a series of Testamentary Trusts created for different members of the family, whether certain assets should fall into specific Testamentary Trusts for some but not all of the family members. In this regard, we need to discuss in detail your financial circumstances and, usually, we need to discuss various issues with your accountant to ensure proper estate planning and due regard to the imposition of various taxes (such as Capital Gains Tax, GST and Land Tax).
FAQs - Probate
What do I need to give you to start the process?
I have an account for the funeral; will the bank release funds to cover it?
Can I access the assets straight away?
As an Executor of the estate, what are my responsibilities?
What is a Grant of Probate?
How do I obtain a Grant of Probate?
Is a Grant of Probate required for every deceased estate?
Is there a filing fee payable when the Application for Grant of Probate is filed at the Court?
What do I need to give you to start the process?
In order for the process to get underway we always request that you provide us with:
- any statements or other written material in respect of the assets and liabilities of the deceased.
- the original Will (or your advice as to where it is located or if there is even a Will in place).
- The original Death Certificate. This may not be received until a few weeks after the date of death and can be provided to us at that time.
I have an account for the funeral; will the bank release funds to cover it?
Yes, the bank will allow payment of one account after date of death. Simply provide us with the original funeral account and details of the deceased's bank account and we will make an application to the bank to pay it on your behalf.
Can I access the assets straight away?
No. From the date of death until a Grant of Probate is made by the Supreme Court, all assets of the estate will be frozen. With the exception of obtaining funds from the deceased's bank account for payment of funeral expenses, no other withdrawal or transfer of funds should occur. It is possible, however, for the estate to continue to receive income during this time.
As an Executor of the estate, what are my responsibilities?
As an Executor of the Estate, it is your responsibility to identify the assets and liabilities held by the deceased as at date of death, to obtain a Grant of Probate of the Will and, pursuant to that Grant of Probate, proceed to collect the assets, pay the liabilities and distribute the assets to the beneficiaries as provided for in the Will.
What is a Grant of Probate?
A Grant of Probate is the approval of you as Executor given by the Court, which allows you to proceed with the administration of the estate. Only once a Grant has been made by the Court, will you be entitled to deal with the assets of the estate by way of redemption, transfer or transmission.
How do I obtain a Grant of Probate?
Firstly, we write to all of the various asset holders and investment bodies to verify the assets of the estate. Once we have received all of these details from the various institutions, we will prepare the Application for Grant of Probate ready for your execution. Once the Application has been signed it will be filed at the Supreme Court and, subject to any issues raised by the Court, Probate should be granted in around 2 weeks from the date of filing.
Is a Grant of Probate required for every deceased estate?
No. There are certain instances where a Grant of Probate is not required.
If all the assets of the deceased are jointly held, then a Grant of Probate will not be required. All assets held jointly, by virtue of survivorship, can be transferred to the surviving joint tenant without the requirement of a Grant of Probate.
Also, if the assets of the estate do not include real estate and are minimal (i.e. bank accounts not exceeding a combined total of $20,000.00 or shareholdings not exceeding $15,000.00) then the investment institutions will often accept a form of indemnity in lieu of the requirement for a Grant of Probate.
Is there a filing fee payable when the Application for Grant of Probate is filed at the Court?
Yes. The amount of the filing fee payable when the Application for Grant of Probate is filed is dependant upon the gross value of the estate. A schedule of filing fees payable is set out below:
| Gross Value of Estate | Filing Fee Payable |
| Less than $49,999.99 | $Nil |
| Between $50,000.00 and $249,999.99 | $582.00 |
| Between $250,000.00 and $499,999.99 | $734.00 |
| Between $500,000.00 and $999,999.99 | $1,106.00 |
| Exceeding $1,000,000.00 | $1,472.00 |
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