Estate Planning and Drafting Your Will
On this page, you will find information about estate planning and drafting wills in Australia. This area of the law is complex. This information is general in nature, does not contemplate all scenarios, does not consider your personal circumstances and should not be taken as legal advice. Speak to one of our estate lawyers today on 0485 872 417 for legal advice.
Estate planning is the process of looking at your circumstances, the property you have and your wishes for what will happen when you pass away. Estate planning serves a number of important factors including:
- Looking at ways of avoiding any disputes after you pass away
- Looking at how your estate can be distributed
- Setting up testamentary trusts for the administration of your estate after you die
- Considering and drafting powers of attorney financial and/or medical
- Looking at any assets that are or can be given away outside of the last will and testament such as superannuation
- Reducing any taxes payable through your estate
Our estate lawyers provide will provide you with qualified legal advice and assistance to plan your estate, reduce any possible conflict and optimise your legacy according to how you want to dispose of your property.
Will and Last Testament
Having a will is important for anyone who has assets and property, a partner, dependents, family members, pets or wishes to leave instructions for the guardianship of children. Unless you have a valid Will, your estate may not be distributed in accordance with your wishes. Worst, you could leave your loved ones with the difficult burden of administering an estate without a valid Will or as a disputed estate.
The purpose of your Will is for you to say how and what happens to your property when you pass away. Various laws govern how a Will is constructed and executed and how property given in a Will is managed. If a Will is not constructed and executed in accordance with the law, a beneficiary may be left without intended property or there could be a long and expensive dispute through the Courts. Court disputes around contested Wills could include costs being taken from your estate. Getting your Will right is about your own peace of mind in knowing you’ve done everything you can for your loved ones.
The complexity of a Will depends on your personal circumstances and wishes. Some important things to consider in making a Will include:
- The number of people you want to give your property to
- Whether you want to give specific items of property to specific people
- Whether you owe or will owe debts or tax obligations when you pass away
- Any obligations you might have to provide for a family member or dependent
- The amount of property you have available in your estate
- The cost to administer your estate after you pass away
- Whether you have complex circumstances such as businesses
- Whether you are giving away all your property or you will want to create a trust so your property continues to be used in accordance with your instruction to continue providing a benefit to your intended recipients
Ordinarily, you have the freedom to give away your property to anyone you like. Under some circumstances, the law considers that a person has an obligation to provide for a family member or dependent in their Will. If provision is not made in a Will for such a person, then that person may be able to ask a Court to make provision for them out of the estate whether you like it or not. In some cases, the legal and or court costs for taking such an action can be high and these could be taken out of your estate.
Our estate lawyers can assist you to create a Will that will honour what you want to happen to your property when you pass away and give you peace of mind knowing you’ve done everything you can for your loved ones. We can assist you with simple and complex Wills.
A Will represents your wishes as to who gets your property or how the property is managed when you pass away. The following are some basic terms used in most Wills:
- Testator – A Testator is a person who is leaving the property in a Will. Sometimes a Testator is also known as a Will Maker.
- Beneficiary – A person or people that you nominate to receive some or all your property when you pass away. They are called a beneficiary as they will have the benefit of the property or trust provided for in the Will.
- Executor – After a person passes away, an Executor is a person who is responsible for finding and calling in all the property in the Will such as money in bank accounts, furniture, cars, houses etc. An Executor can be a family member, close friend, an acquaintance or a lawyer. Your Executor should be trustworthy, capable and willing to manage your Estate. An Executor will need to be able to interact with the beneficiaries. If you don’t believe you know anyone who can be your Executor contact us to determine if our estate lawyers can be the Executor of your Will. Having the right Executor to manage your affairs is another step to giving you peace of mind that your legacy is being handled according to your wishes.
- Trustee – After your property has been called in and collected by the Executor, the trustee then has the duty of distributing the property or managing the property. Often the Executor and Trustee named in a Will are the same person but this is not always the case.
Wills can be a tricky and a lack of consideration of your circumstances or understanding of the laws that govern a Will could lead to difficulties for your Estate, beneficiaries and family members. Here are some special circumstances that you may need to consider:
- If you own a house, land or property with other people as joint tenants or joint proprietors you may not be able to give away this property in your Will.
- If you have personal property that was purchased jointly with someone else you may not be able to give away this property in your Will.
- If you have a business you may need to make special instruction in your Will. If you do not, the Executor or Trustee may be forced to sell the business or face personal liability for any business losses.
- If you have superannuation, you should carefully consider if the superannuation can or should be passed through your Estate or if you should make a nomination. Without managing your superannuation, it may go to an unintended recipient. There are special laws for how your superannuation is distributed. There are both tax and debt considerations in how you deal with your superannuation.
- If you have debts, the law has default rules as to how the debt is to be paid from your Estate which could disadvantage certain beneficiaries.
There are special rules that govern how a Will is to be drafted. If these rules are not followed it could lead to delays before the beneficiaries in your Will can receive the property or could lead to disputes or your Will being invalid. Our estate lawyers can guide you through the process of planning for your estate and making a valid Will. Our aim is to give you the peace of mind that your legacy will be a positive lasting memory for your loved ones.
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