WILLS AND ESTATES

WILLS AND ESTATES

WILLS

Having a Will in place is extremely important to ensure your estate is distributed according to your wishes. Depending upon your situation, you may require a complex Will or a standard Will may be sufficient.

With a Standard Will, we will help you explore the important questions regarding:

• Who is to be authorised to manage the distribution of your assets, known as your Executor;
• Who is to be authorised to hold assets on trust for other persons, known as your Trustee;
• Who will look after your dependents, including minor children, known as a Guardian;
• Who is to benefit from your estate, known as your Beneficiaries;
• Any special gifts or provisions to be made for certain persons or charities;
• Your wishes regarding funeral arrangements;
• Your wishes regarding organ donations and medical research;
• How to protect your will from being challenged by a Family Provision Claim; and
• Superannuation and life insurance (which normally does not form part of a Will).

To request a chat with us, go to our contacts page.

---

WILLS AND ESTATES

Testamentary Trusts

If you are concerned about protecting and optimising the value of your assets for your beneficiaries after you die, we can help you include a testamentary trust in your Will.

What is a testamentary trust?

A testamentary trust is a relationship created in a Will where the deceased person appoints a person(s), referred to as the Trustee, with the obligation to manage identified property and related income of the deceased’s estate, for the benefit of nominated beneficiaries.

When should you consider creating a testamentary trust?

There are a number of reasons why you may want to consider creating a testamentary trust. The main reasons include taxation benefits and the protection of assets from vulnerable beneficiaries, bankruptcy and family provision claims.

Taxation Benefits

If assets are distributed directly to the beneficiary then any income generated from those assets will be considered to be part of the beneficiary’s taxable income and will be taxed at their marginal rate. By holding the assets in a trust, the income can be distributed to other members of the beneficiary’s family who have lower income and therefore the advantage of a lower marginal tax rate.

Vulnerable Beneficiaries

Holding assets on trust enables them to be protected in the interest of the beneficiary in circumstances where:

• The beneficiary may not have the ability to manage the assets if he/she were to receive the assets directly;
• The beneficiary may be vulnerable to addictions such as gambling or drugs;
• The beneficiary may be on social security and may lose their entitlements if they were to receive a lump sum inheritance;
• The beneficiary is a minor.

Bankruptcy

If a beneficiary is bankrupt, or at risk of bankruptcy, holding the assets in trust will ensure that they are protected from creditors as the assets are owned by the trust and not the individual.

Family Provision Claims

Holding assets on trust for a beneficiary will mean they are kept outside of ‘marital property’ and will therefore protect them from family provision orders of the Family Court. However, the Family Court may consider the presence of the trust in calculating what they consider to be an equitable distribution of the marital assets.

We can help you include a testamentary trust in your Will and ensure you correctly assign a Trustee to manage the trust, identify and transfer the assets into the trust and ensure the interests of your beneficiaries are protected.

To request a chat with us, go to our contacts page.

---

WILLS AND ESTATES

Enduring Power of Attorney

We will ensure that your Enduring Power of Attorney makes provisions for your wishes in the event that you lose the capacity to make decisions for yourself. This is important because you cannot revoke an Enduring Power of Attorney after losing mental capacity.

Once a person loses mental capacity, they are not able to appoint an Attorney themselves. If you do not have an Enduring Power of Attorney and you lose mental capacity, there may be no one with legal authority to manage your financial affairs. This may mean that the NSW Civil and Administrative Tribunal or the Supreme Court will need to appoint you a financial manager, which may not be the person you would have wished to have appointed.

It is important to understand that an Attorney under an Enduring Power of Attorney cannot make decisions on your behalf about your health or lifestyle. The authority to make these decisions can only be made through a duly appointed Enduring Guardian.

An Enduring Guardianship and Enduring Power of Attorney are complementary documents. They can be made separately or together, giving you the choice as to who you want to have the authority to make decisions across all areas of your life if you are unable to make those decisions for yourself.

Have a company? The appointment of a corporate Attorney may be required.

To request a chat with us, go to our contacts page.

---

WILLS AND ESTATES

Enduring Guardianship

There may be a time in the future where you need somebody else to act on your behalf regarding health, personal and lifestyle decisions. An Enduring Guardianship document is useful if you lose capacity as a result of illness or accident.

When you appoint an Enduring Guardian, you can specify exactly what functions the Guardian is authorised to exercise. We will help you explore and evaluate any conditions or limitations you wish to impose on your Enduring Guardian to ensure your wishes are represented.

It is important to understand that a Guardian under an Enduring Guardianship cannot make decisions on your behalf about your legalities and financials. The authority to make these decisions can only be made through a duly appointed Enduring Power of Attorney.

An Enduring Guardianship and Enduring Power of Attorney are complementary documents. They can be made separately or together, giving you the choice as to who you want to have the authority to make decisions across all areas of your life, if you are unable to make those decisions for yourself.

To request a chat with us, go to our contacts page.

---

WILLS AND ESTATES

Deceased Estate Administration

We understand the many challenges and questions associated with administering a deceased estate, including:

• Who is responsible for administering the deceased estate?
• Did the deceased leave a Will?
• How should funeral arrangements and expenses be handled?
• Is a Grant of Probate necessary?
• Is a Grant of Letters of Administration required?

To request a chat with us, go to our contacts page.

Grant of Probate

We can help you understand the circumstances in which a Grant of Probate is required in order to administer the deceased’s estate.

A Grant of Probate is a legal document issued by the Supreme Court which confirms the Executor’s appointment to deal with your estate.

The Grant will be required in circumstances such as owning real estate or holding assets in their sole name, or owning significant assets over a certain value. Generally, if all of the deceased’s assets were jointly owned with another person (such as their spouse), a Grant of Probate may not be required.

To request a chat with us, go to our contacts page.

Letters of Administration

We can help you understand the circumstances in which a Grant of Letters of Administration is required in order to administer the deceased’s estate.

A Grant of Letters of Administration is a legal document issued by the Supreme Court that appoints an administrator to administer a deceased person’s estate.

The three main reasons why a Grant of Letters of Administration might be required are:

• A person has died without leaving a valid Will;
• A person had died and has not appointed an executor in their Will; or
• An executor has been appointed however they are unwilling or unable to act and there is no other person appointed as a joint or substitute executor.

To request a chat with us, go to our contacts page.