Having an effective estate plan, managing and protecting your assets, and ensuring your retirement and beyond is as comfortable and fulfilling as possible, are important issues for all of us.

What is a Will?

A Will is a written legal document that states your wishes regarding what happens to your property (your ‘estate’) after your death. It gives instructions for the person or organisation distributing your property (your ‘executor’) on how this is to happen.

Anyone aged 18 years and over can make a will, so long as they have the mental capacity to understand what they are doing. For a Will to be valid it must be in writing, intended to be your Will and signed on each page, in front of at least two witnesses. The Will should also be dated.

If you don’t have a Will at the time you die, you will have died intestate. If this happens your assets will be distributed in accordance with a statutory formula which may not reflect your intentions. Dying intestate also usually causes additional stress and expense for your loved ones.

Estate planning goes beyond drafting a Will

The preparation of a carefully drafted Will is a central part of estate planning and part of the many services we can offer. Effective estate planning however goes beyond writing down a list of your assets and nominating who they will go to after you die. Depending on your circumstances, you may also need to consider:

• Appointing a trusted person to manage your affairs and make decisions about your care if you no longer have capacity to make these important decisions yourself.
• Appointing a suitable guardian to care for children if you were to die before the children were old enough to look after themselves.
• Creating testamentary trusts to help protect your hard-earned assets and to protect vulnerable beneficiaries and appointing a trustee to manage assets left to your children until they become adults.
• Planning your estate and structuring your assets in the most tax effective manner.
• Your superannuation and nominated beneficiaries – consideration of the way death benefits are taxed in the hands of the recipient is important to ensure the most tax-effective results are achieved.
• Blended families and children from previous relationships and the potential for a maintenance claim to be made after you die if you have excluded somebody from your Will.

Asset protection

Asset protection involves the structure of affairs to eliminate or reduce financial loss and to safeguard property. When planning your estate, there are steps you can take to ensure your assets are protected for future generations and that your estate is left only to those you intend to benefit.

We can review your personal circumstances and advise you accordingly so that you can make an informed decision when planning your estate.

Administering an estate

Administering a deceased estate can be a complicated task and stressful for both beneficiaries and executors. We have the experience and compassion needed to guide and assist you through this process and to ensure that the best outcomes are achieved with the least amount of distress for all parties involved.

In many instances the administration of an estate will not involve a dispute and an uncontested application for probate or letters of administration (in the case of an intestate estate) may be made.

Obtaining probate means proving that the Will relied upon is valid and was the last Will prepared by the deceased. A grant of probate is made upon application to the Supreme Court and authorises the executor to deal with the assets and administer the estate. In the case of an intestate estate, the next of kin usually applies for letters of administration so the estate can be dealt with.

A grant of probate may not always be needed particularly for more modest estates with limited asset pools. If you are an executor, we can advise whether a grant is necessary of recommended, and help you make the application.

We will also guide you through the administration process to distribute and finalise the estate in accordance with the Will or rules of intestacy.

Estate litigation and family maintenance claims

Disputes over deceased estates can be complex and emotional. We can assist with all types of estate disputes including challenges to the validity of a Will and family maintenance claims.

If you need assistance, contact [email protected] or call 03 9326 1455 for a no-obligation discussion and for expert legal advice.