Wills & Estate Planning

What is estate planning and why is it important?

Estate planning is the process of making plans (and formalising them) about what happens to you (your care and wellbeing) and your estate, in the event you become incapacitated or die.

When we talk about ‘your estate’, we mean everything you own; for example, real estate, vehicles, money in your bank account, furniture, investments, shares, life insurance and even personal possessions like jewellery or artwork.

It is important to make decisions yourself about what will happen to your assets when you die or who will manage your financial and care decisions if you become incapacitated and unable to make those decisions yourself.

At E&A Lawyers, our estate planning advice and assistance takes a holistic approach. We ensure you’re aware of all the processes and options available to you to give you peace of mind for the future.

Our key components of estate planning

Your Will

A Will is a legal document which clearly sets out your wishes about the distribution of your assets if you die and, where you have children under the age of 18, who you wish to appoint as their guardians. Every adult should have a Will. Even though legislation exists in case you do not have a Will, the result is highly unlikely to be what you would have wanted and could be unsatisfactory and inappropriate to those left behind.


Testamentary Trusts

A Testamentary Trust is a trust created in your Will, which only comes into existence upon your death. Given the complexities of taxation laws, family law disputes and creditor claims and given that many of us now have two significant assets, being the family home and superannuation (including life insurance), often a simple Will is not enough to protect your family.


Enduring Power of Attorney

Your Will determines what happens after you have died. Your Enduring Power of Attorney provides for you during your lifetime by allowing someone you trust to make decisions as to your legal and financial affairs should you be unable to do that yourself. A further document called an Appointment of Enduring Guardian which can include Advance Care Directives, allows someone to make decisions as to your care, well-being and living arrangements if you become incapacitated and unable to make those decisions for yourself.


Advance Care Directive / Appointment of Enduring Guardian

Your guardian is someone you nominate through an Appointment of Enduring Guardian to make decisions about your health care and well-being if you are unable to do so. You can also specifically direct your guardian as to how you wish to be treated by way of an Advance Care Directive (ACD).


Contesting a Will

There are generally three areas in which you can contest or challenge a Will.

  • There may be an argument that the Will maker did not have capacity to understand what they were doing when the Will was made.
  • There may be a suggestion that the Will maker was unduly influenced in making the Will.
  • There may be a claim that the Will maker did not adequately provide for you, or did not provide for you at all, as a beneficiary.

Each of these claims will depend on all of the circumstances and the evidence that can be used to support the claim. We can provide you with advice as to whether you have a viable claim.


Probate (Managing a deceased estate)

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 is, principally, a "licence" to you, as Executor, to deal with the assets in the estate.


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Learn about the key steps and timelines for dealing with a Deceased Estate including your role and obligations as executor, applying for a Grant of Probate, what to do if there is no Will and how we can help you.

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Blogs - Wills & Estate Planning

Timing the withdrawal of your superannuation to be tax effective

Timing the withdrawal of your superannuation to be tax effective

As the population ages, the issue of timing the withdrawal of funds you’ve accrued in your superannuation account(s) becomes more important. Withdrawing from your super too early, you may miss out on the favourable tax treatment. Not withdrawing in time and your money may be subjected to tax which might otherwise not have applied.
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When should I review my Binding Death Benefit Nomination?

When should I review my Binding Death Benefit Nomination?

If you’ve made a Binding Death Benefit Nomination to deal with superannuation fund moneys after death, and you’ve either nominated your legal personal representative in your Will or a particular person, then just like your Will, it may need to be reviewed and revised from time to time.
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How can I stop my kids from challenging my Will?

How can I stop my kids from challenging my Will?

Contemplating leaving a child out of your Will is a common issue that arises in families, particularly where one or more of the children are seen as the “black sheep”. In very general terms, kids might challenge the Will you make in three areas.
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Duties and responsibilities of a trustee

Duties of a trustee

In very general terms, a trustee holds assets of a Trust, manages those assets and deals with the capital and income in accordance with the terms of the Trust. The trustee owes a duty directly to the beneficiaries and must always act in the best interest of those beneficiaries.
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