Will & Estates Lawyers
A will is a legal document that sets out your wishes for the distribution of your assets and the care of any minor children after your death. It allows you to appoint executors to manage your estate, specify beneficiaries, make specific gifts, and provide instructions for your funeral or other personal matters. Having a valid will ensures that your assets are distributed according to your wishes, providing certainty and peace of mind for you and your loved ones.
A will can be drafted by you; however, it is often easier if you seek assistance from a suitably qualified lawyer to ensure that your will is valid. It is also important that what you want is clearly reflected in the will and that it is realistic and achievable for your estate. In New South Wales, the creation and validity of wills are governed by the Succession Act 2006, which requires that a will be in writing and signed in the presence of two witnesses to be formally valid. However, even informal wills may sometimes be accepted by the court in certain circumstances.
Without a will, your estate will be distributed according to a statutory formula, which may not reflect your intentions or family circumstances. This can lead to delays, additional costs, and potential disputes among family members. A will also allows you to appoint guardians for minor children and make specific bequests to friends, charities, or other organisations that are important to you.
Testamentary Discretionary Trust – Complex Wills
A Testamentary Discretionary Trust is a complex will that, upon death, can convert the gift or the inheritance to be held in a testamentary trust. This is a common Australian planning device, particularly for children, asset protection, tax planning, and vulnerable beneficiaries although, it is not always the best course of action for each estate and must be considered carefully. We would recommend that you obtain taxation advice as well as legal advice if you are considering this, to understand the wider implications.
Vulnerable or protected beneficiaries
Testamentary trusts are also used where a beneficiary is vulnerable—for example, because of age, disability, bankruptcy risk, or family law exposure. The materials note that a testamentary discretionary trust can provide asset protection and may also accommodate transfer to a Special Disability Trust for a beneficiary where appropriate, that is managed by the trustee.
Power of Attorney and Enduring Guardian?
Appointing a power of attorney and an enduring guardian ensures that trusted individuals can make important decisions on your behalf if you become unable to do so. This avoids the need for court or tribunal intervention and provides clarity and certainty for your family during difficult times. It is a common misconception that these documents are only for the elderly; in reality, anyone over 18 with capacity should consider making these appointments, as incapacity can occur at any age.
Power of Attorney
A power of attorney is a legal document that allows you (the principal) to appoint one or more people (attorneys) to manage your legal and financial affairs on your behalf. An enduring power of attorney continues to operate even if you lose mental capacity, ensuring that your financial matters can be managed without interruption. The attorney can pay bills, manage investments, buy or sell property, and handle other financial matters as specified in the document.
Enduring Guardian
An enduring guardian is someone you appoint to make health and lifestyle decisions for you if you lose the capacity to make these decisions yourself. This includes decisions about where you live, what medical treatment you receive, and other personal matters. The appointment of an enduring guardian is a separate process from appointing a power of attorney, as the latter cannot make health or lifestyle decisions.
Estate Planning: What is Involved?
Estate planning is the process of organising your affairs to ensure your assets are protected and distributed according to your wishes, both during your lifetime (in the event of incapacity) and after your death. It typically involves:
- Preparing a will
- Appointing an enduring power of attorney
- Appointing an enduring guardian
- Considering superannuation and life insurance nominations
- Reviewing ownership structures for assets (such as trusts, companies, or joint tenancies)
- Planning for business succession if you own a business
- Addressing tax implications and asset protection strategies
- Providing instructions for digital assets and online accounts
Why is Estate Planning Important?
Estate planning is essential to:
- Ensure your wishes are carried out and your loved ones are provided for
- Minimise the risk of disputes or challenges to your estate
- Protect vulnerable beneficiaries, such as minor children or those with special needs
- Maximise tax effectiveness and asset protection
- Appoint trusted people to manage your affairs if you lose capacity
- Provide peace of mind for you and your family
Without proper estate planning, your assets may not be distributed as you intend, and your family may face unnecessary stress, delays, and costs.
Important Things to Consider
When planning your estate, consider the following:
- Who will be your executors and trustees? Choose people you trust and who are capable of managing your affairs.
- Who are your beneficiaries? Consider family members, friends, and charities, and whether any beneficiaries have special needs.
- Guardianship of minor children: Appoint guardians who share your values and are willing to take on the responsibility.
- Asset ownership: Review how your assets are held (individually, jointly, in trusts or companies) as this affects how they are dealt with in your estate.
- Superannuation and life insurance: Ensure your nominations are up to date and consistent with your overall estate plan.
- Business interests: Plan for the succession of any business interests to avoid disruption.
- Digital assets: Provide instructions for accessing and managing digital accounts, social media, and cryptocurrencies.
- Regular reviews: Update your estate plan as your circumstances change (e.g., marriage, divorce, children, acquiring new assets).
At Catron Simmons Lawyers, we can help assist to ensure that your loved ones and wishes are taken care of. We offer realistic advice in what can be an overwhelming experience. We are here to guide you through the process and ensure it is as smooth as possible. Contact us, to book an appointment with our office located Bella Vista in the Norwest Business Park in the Hills District or ring us on 0407 171 626 (Alicia) or 0407 534 594 (Michelle).