Wills

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.

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.

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.

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.

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.

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.

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.

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.