Where there’s a Will, there’s a Way
Last Will and Testament
First things first – if you don’t already have a Last Will and Testament (Will), then you need to attend to this as soon as possible.
If you die without a Will your wealth is distributed in accordance with State rules which can lead to outcomes you would never have wanted. By preparing a Will, you give your loved ones the peace of mind that you have taken care of your affairs for them.
Your Will may be current, but is it strong?
A strong Will ticks a lot of boxes.
- The Will is professionally drafted. Many Wills are ambiguous or don’t use the correct legal terminology, and later need a court to interpret it.
- The Will has been thought through for every realistic scenario that could eventuate in the future and has catered for it. For example, does your Will cater for the situation where an asset you have gifted is sold.
- The Will is likely to include testamentary trusts to give your beneficiaries tax opportunities and asset protection.
It is a well known secret amongst estate lawyers that the poorer the thought and effort in the Will, the greater the chances of it costing a six figure sum in litigation costs at the other end.
Is a Will enough?
Short answer is ‘No’. You need to cover off on assets that don’t form part of your Will, such as superannuation and jointly held assets. Your Will does not help you if you are living but incapacitated, so an Enduring Power of Attorney (and Enduring Guardian in NSW) should be put in place to safeguard your interests in the event of any future incapacity. When you attend your first consultation with us, we will go through everything that you need so that your affairs are in order – we call it an ‘estate plan’. A good estate plan covers all of your wealth and safeguards your wishes on incapacity.
Make sure you have a strong Will
When you meet with one of our experienced wills and estates lawyers, we will provide you with solutions on how best to do your Will, based on your particular circumstances. We are experts in drafting Wills from simple to complex. At our first meeting, you will also receive a no obligation fixed fee quote for the work to be done.
Why do I need a Will solicitor?
There are many good reasons to hire a Will solicitor. First of all, a Will lawyer thinks about a Will from a perspective of what could go wrong, and ask you lots of questions that you may not have thought of to ensure that there are no cracks in the estate plan. Secondly, a Will solicitor will also make sure that your beneficiaries inherit your assets in an appropriate way. For instance, perhaps your beneficiaries would be better to receive their inheritance in a testamentary trust for their future asset protection or to help ensure they do not spend everything at once? Perhaps there are better tax strategies in which of your Beneficiaries receives your superannuation or property? Finally, a competent Will solicitor will also look further than just doing a Will for you. They will also give you advice on:
- Asset protection to minimise the risk of claim
- Legal solutions if you lost your capacity
- Specialist advice around your superannuation within your estate
- Unique situations that can appear within blended family arrangements
- Other legal advice and services around your Estate Planning
What is in my Will?
Most legal Wills contain the following:
- Nomination of executors and alternative executors
- Details of the distribution of your estate to your beneficiaries (for instance, specific assets or a percentage of your residue, whether it is given outright or upon reaching a certain age)
- Nomination of guardians for any minor children
- Provisions around the administration of the estate (for instance, the powers of the executors / trustees, provisions around tax, jurisdiction and other issues)
- Proper witnessing requirements
At Estate First Lawyers, our specialised Will solicitors will create a carefully considered Will that ensures your assets pass to your beneficiaries and that your affairs are arranged according to your wishes.
What can affect my legal Will?
You should review your Will at least every five or so years so it is up to date. You should also speak to a Will solicitor after any major life changes to ensure your Will is still valid and appropriate for your situation. If it’s no longer valid and appropriate, you should have a new Will drafted.
Major life events that can affect your Will include:
- Separation / Divorce
- De facto relationships
- Birth of children or grandchildren
- Children reaching adulthood
- Death or incapacity of your executor/s
- Death, incapacity, bankruptcy, or change in relationship status for any of your beneficiary/ies
- Major changes to your assets
- Starting or winding up a business, trust, or other legal structure
- Moving to and/or establishing assets in different Australian States
- Moving and/or establishing assets overseas
What grounds are there for contesting a Will?
While the law respects your right to decide on how to distribute your estate, there are still situations in which a Will can be contested. The most common grounds for contesting Wills include:
- Lack of adequate provision for a spouse, children or other eligible applicants
- Executing a Will when of unsound mind or under undue influence from another party
- Incorrect execution of a Will
- Ambiguous or poor drafting
There are large litigation costs when a Will is contested, and this can diminish the assets you are leaving for your beneficiaries and place undue strain on family relationships. The best way to avoid having your Will contested is to hire professional Will solicitors. Contact First Estate Lawyers today to find out more.
Talk to Us Today
Please complete the form below. Alternatively, you can call us on 1300 132 567.
Our unique ‘4 easy steps’ makes the process easy
Expert Estate Planning with Fixed Fees
Meet With Your Lawyer
Whether we meet virtually or face to face, we will listen, answer your questions, craft your estate plan and provide you with a fixed fee quote.
We’ll Keep You Updated
You will receive draft documents to review. You can discuss your plan with us at any time you want.
Final Document Meeting
We will go through all of your final documents together to ensure the plan is exactly what you want.
Frequently Asked Questions
What happens if I die without a Will?
If you die without a Will, you are said to die ‘intestate’ and how your wealth is distributed is determined by State legislation which is a ‘one size fits all’ set of rules as to who will receive your assets after you die. You also give up your chance to determine who will be the executor of your estate, that is who controls the purse strings of your assets after you die.
Relying on the standard State rules can often lead to outcomes you would never have wanted. By getting a specialist Will Lawyer to prepare your Will, you give your loved ones the peace of mind that you have properly taken care of your affairs for them.
What is the difference between a ‘Will’ and a ‘Testamentary Trust Will’?
A Will is a legal document where you specify your wishes (for example your funeral arrangements, guardians for minor children, etc.) and how you want your wealth distributed on your death (by choosing beneficiaries and specifying the gift they are to receive). A Will also needs to include an executor of your Estate (that is, a manager who will look after your affairs and see to the instructions in your Will after you pass away).
A testamentary trust Will does all that, but in addition includes a specially drafted trust for a beneficiary under the Will, who takes their inheritance in the testamentary trust vehicle, rather than taking their gift outright (in their own name) under a Will. Testamentary trusts in Wills are more complex and should be drafted by a Wills Solicitor.
Please contact Estate First if you want to know more about putting such a Will in place.
Why is Estate Planning important?
Estate Planning includes all of the advice, strategies and legal documents that you need to ensure that you have your affairs in order in the event of your incapacity or death. Estate planning is more than just a Will. It includes advice on how to pass your super, strategies to minimise the risk of a claim, advice on tax strategies to minimise the tax burden on your Estate and beneficiaries, and documents such as enduring powers of attorney and health directives. Having a thorough estate plan approach helps avoid complications, expense and disputes arising if you lose capacity or pass away.
Do I need a lawyer to make a Will?
The answer is ‘no, you can prepare a DIY Will’, but it may be the most expensive Will you ever do! The area of Wills and estate planning is becoming more and more complex, and the litigated cases are rapidly increasing and are very expensive to run. Many DIY Wills come before the courts, and the cases primarily are on two issues:
- Clauses in the DIY will are not drafted professionally enough, and so its meaning is unclear. The court takes the Willmaker’s drafting very seriously because the Willmaker is no longer available to clarify what they meant. Questions arise on what appears to be the simplest of drafting, such as ‘does a gift of my home’ mean the gift of my retirement village unit?’ Or ‘does a gift of $50,000 to my niece Mary and my nephew John’ mean $50,000 each, or together? Legal fees can (and have) easily run to over $100,000 to answer these questions, not to mention the delays and added stress on the family.
- DIY Wills often are drafted without proper knowledge of the limits of a Will (for example it does not automatically dictate how your super will pass, or how joint tenancies will pass) or take into account the risk of estate claims by eligible persons who have not been adequately provided for in the Will.
No wonder DIY Will kits are called the estate litigation lawyers best friend! Proper Will preparation and estate planning is key. Estate First have specialist estate planning lawyers who know the risks involved in this area of law and can provide you with a fixed fee quote to ensure you have peace of mind when it comes to your legacy.
What is the cost of an estate plan?
The cost of your estate plan will ultimately depend on a number of factors, including your personal relationships (blended family, wishing to cut out a spouse or child, etc.), your asset structures (e.g. companies, family trusts, self managed super) and how much inheritance control or risk minimisation you want or need. This in turn, dictates how complex the Will drafting and other testamentary documents needs to be. Prices and quality vary considerably between legal providers, so it is important to ensure that you are getting value for money by firstly, selecting a Will Lawyer who specialises in the area of estate planning (as it is a complex area) and secondly, that you obtain a quote before proceeding with the work. Estate First Lawyers specialise in estate planning across Australia, including Will preparation from your standard provisions to complex scenarios. One of our Wills and Estates Lawyers will be able to provide you with cost-effective estate planning solutions in a timely manner and provide you with a fixed-fee basis at our first consultation.
Who will administer my Estate?
Your Last Will and Testament needs to specify who will administer your Estate (executor) and who will receive your wealth (beneficiaries). If you do not have a Will (or do not have a valid appointment of an executor because they can no longer act), then your loved ones will need to apply for Letters of Administration with the Will annexed and the law will stipulate who is entitled to be appointed an administrator of the Estate and after your death.
Who looks after my young children if I die?
The surviving biological parent, if any, will have the automatic guardianship of the children, unless there is a court order in place to say otherwise. If both parents have died, then your family members will be left to decide who will take care of your children, which could end up in a Court application needing to be made if consensus cannot be reached. In terms of your assets, this will depend on whether you have made a Will or not. Also, young children cannot legally own assets until they are adults (i.e. 18 years or older), so there will need to be a person entrusted to hold the assets (and manage them prudently) until the child turns 18. Without the right documents in place, you have no part in determining who will be the guardian of your young children, how much they will inherit, and no protective framework or choice as to who will look after their inheritance.
The answer is to select the guardians in your Will and to put in place a testamentary discretionary trust to hold your young child’s inheritance until an age that you specify they will be mature enough to handle the wealth for themselves. At Estate First, our Will Solicitors can assist in preparing such Wills which properly cater for your young family with our tailored young family solutions. We can also assist you in preparing guidelines for the guardians of your children and for the person or persons you chose to control your children’s inheritance while they are young.
What happens to my pets when I die?
Your pets are considered to be your personal property, which means that you can leave your pet to a friend or family member in your last Will and testament. However, unlike other assets, pets come with responsibilities and an ongoing cost for their care. So you may also choose to leave an additional sum of money in your Will to cover the ongoing costs throughout the animal’s lifetime (such as food, vet fees, etc.). You will need to choose someone you trust, as there is no guarantee that they will actually use the funds to care for your pet when the time comes, unless you set up a very formal trust (which would have ongoing administrative fees). If you do not have anyone suitable in mind, certain charities are also able to assist with rehoming your pets if you pass away. At Estate First Lawyers, one of our Will lawyers can discuss these options with you and arrive at a solution that best suits your needs.
"Estate First were recommended by our financial advisors – the process of updating our wills and power of attorney documents was easy and straightforward with plenty of advice and discussion about things we were not sure of. We appreciate their help in facilitating a not particularly pleasant process in such a friendly and helpful way."
"Really, I had little understanding of the way in which wills work and don’t work. Our lawyer was a delight to work with. Nothing was too much trouble for them and they went to great lengths to answer our questions and ensure our understanding of everything. My husband and I have a peace now about what we leave behind for our family."
"This is the third time I’ve done my estate planning in 15 years and by far the most efficient, professional and genuine not to mention thorough! I’ve recommended Estate First Lawyers to others and will continue to do so. It was a seamless process and for busy people like me it was made easy. I received really valuable advice and different options."
"The services provided by Estate First Lawyers in updating our wills has been transformative. Their specialist in depth knowledge and advice has given us greater protection in safeguarding our family estate. Best of all their advice has provided us with a greater peace of mind knowing our new wills are now fit for purpose."