Despite understanding the significance of estate planning, many people put off this important task. With help from an experienced lawyer however, you can minimise much stress for you and your family in times of uncertainty and when you die.
An effective estate plan involves preparing a valid Will and appointing someone you trust to help manage your affairs as you age or if you are incapacitated. It also considers your individual and family circumstances to ensure, as far as possible, that your assets and beneficiaries are protected and the potential for family disputes is minimised after you die.
Our experienced wills and probate lawyers can help with all aspects of your estate planning and the administration of the estate of a deceased loved one.
Why use a lawyer to prepare your Will?
A Will records how you would like your assets dealt with after you die and nominates one or more executors to finalise your affairs.
A Will must meet certain legal formalities for it to be deemed valid. For example, a Will that has been incorrectly signed or witnessed can raise doubts as to its authenticity and may be contested after you die. Similarly, questions regarding the capacity of the testator (will maker) to make and understand the effect of a Will can result in a challenge to its legitimacy.
Lawyers are trained to write Wills. As well as dealing with the formalities required to ensure your Will is valid, a lawyer can look at your individual circumstances and recommend structures to help protect assets and vulnerable beneficiaries. They can also work with your accountant to consider structures that achieve more effective tax outcomes for your beneficiaries.
What is a testamentary trust?
A testamentary discretionary trust is a trust made under a Will that comes into effect when the testator dies and can help protect assets and beneficiaries. A trustee is appointed to manage the trust in accordance with the terms of the trust deed, enabling capital and income from the trust to be distributed flexibly and as needed, without giving your beneficiaries direct control over the assets. Trusts can be particularly beneficial for vulnerable and minor beneficiaries, as well as those with gambling or drug/alcohol dependency issues.
As with all forms of estate planning, a testamentary trust is not right for everyone. Trusts can be complex and must be properly managed to achieve their objectives. The administration of a trust costs money each year that it operates, for example, annual tax and auditing costs and trustee’s professional fees. We can help you decide whether a testamentary trust is right for your circumstances.
Deceased estates and estate administration
The process of managing and finalising someone’s affairs after they die is referred to as administering an estate. This is typically carried out by the executor/s appointed in the deceased person’s Will or an administrator (appointed by the court) if a person dies without a Will (referred to as dying intestate).
Before administering an estate, it may be necessary to obtain a grant of probate from the Supreme Court. Probate proves the validity of a Will and authorises the executor to deal with the estate assets and distribute them according to the Will’s provisions.
If a person dies without a Will the next of kin may need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised.
Help for executors and administrators of an estate
If you are the executor of a deceased estate or have lost someone close who did not leave a Will, you may be feeling overwhelmed.
An executor’s tasks involve a range of practical and legal matters including the collection and distribution of estate assets to the beneficiaries in accordance with the Will. An administrator will need to distribute estate assets according to the laws of intestacy. You may need to deal with unfamiliar processes and legal issues to ensure the estate is administered properly. For example, there are certain forms and processes required for transferring certain assets, and estate debts must be paid in a specific order.
It is important to protect yourself from personal liability when finalising an estate and we can help with the steps involved and provide advice to ensure your legal obligations as executor or administrator are met.
Dealing with an estate dispute or a family provision claim can be particularly confronting, and executors may face an uphill battle to defend a contest to the terms of the deceased’s Will. In such cases, our experienced team can help you decide if you should compromise or push back against the claim.
If you need assistance, contact us at or call 02 6245 6000 for expert legal advice.