Wills & Estates

Proactive planning for your later years and after you are gone is important for peace of mind and to protect your assets and family. Taking the time now to make an effective Will and consider the benefits of appointing an attorney and guardian can help minimise stress if you are incapacitated, and after you die. We can help with all aspects of estate planning and administration including preparing a Will that maximises your family’s inheritance, assisting executors and family members with the administration of an estate, and managing a range of estate disputes.

Preparing your Will

How your Will is structured depends on your assets, your circumstances, and your proposed beneficiaries. Your Will should make your wishes clear, avoid confusion, and be legally binding. Some key considerations include:

Your executors – choosing one or more people to take on the legal and administrative task of finalising your affairs after you die and making sure that the wishes outlined in your Will are upheld.
Your beneficiaries – determining who will inherit your assets, how these assets will be divided, and any specific tax implications an inheritance will have on each beneficiary so you can structure your affairs accordingly.
Children from previous relationships – you should consider how you wish to provide for any children from a previous relationship and how your current partner may wish to provide for their children. If you want to exclude certain individuals, your decision might lead to an estate dispute and a lawyer can provide guidance in this area.
Trusts – a testamentary discretionary trust can help protect minor or vulnerable beneficiaries. The trust appoints a trustee to manage the trust in accordance with the terms of the trust deed, enabling capital and income from the trust to be distributed to the beneficiaries flexibly, and as needed.

Why use a lawyer to prepare your Will?

If the legal formalities are not met when a Will is prepared, for example, if the Will is not correctly signed or witnessed, there is a risk that it may be invalid or challenged after you die. An experienced lawyer will ensure that your Will is properly prepared, unambiguous, and correctly signed and witnessed.

We know the potential pitfalls and will ask the right questions to make sure that you have considered various scenarios. We will consider your individual circumstances and design your Will to help maximise your estate and protect your family from potential litigation after you die.

How often should I review my Will?

You should review your Will when your personal and financial circumstances change. Important life events such as marriage, divorce, and the birth of a child; or financial changes like receiving an inheritance or buying a business, are reasons to review your Will and estate plan. You may also need to review your Will when there are major changes in your health. In any event, a routine review every year or so is essential to ensure that your Will continues to reflect your wishes.

Estate administration – help for executors and administrators

After a person dies, someone needs to look after their property and finalise their financial and legal affairs. The administration of an estate is carried out by the executor/s appointed in the deceased person’s Will or an administrator appointed by the court if a person dies intestate (without a Will).

Before administering an estate, you may need a grant of probate from the Supreme Court. Probate ‘proves’ the deceased’s Will and authorises the executor to deal with the estate assets and distribute them according to its terms. If a person dies intestate, a family member will usually need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised.

The role of an executor or administrator can be overwhelming. You may need to deal with matters with which you are not familiar while ensuring you uphold the terms of the Will or rules of intestacy. We can help you through the legal process, providing advice and guidance so you can complete your duties and administer the estate as smoothly and efficiently as possible.

Contesting a Will

If you have been left out of a Will or have been unfairly treated in terms of the amount of your inheritance, you may be able to make a claim against the estate. Family provision claims, also known as ‘contesting a will’, allow eligible individuals to challenge the distribution of an estate if they believe they have not been adequately provided for. In New South Wales, certain categories of people, including spouses, de facto partners, children, and dependents, may be eligible to make a family provision claim. Strict time limits apply so it is important to obtain legal advice as soon as possible.

We can assess your proposed claim and advise whether it is worth pursuing. If you proceed with the claim, we will notify the executors of the estate, obtain relevant evidence, prepare documents, and make an offer of settlement. Many claims are settled through negotiation, however, if the matter is not resolved, we can initiate court proceedings. When determining the matter, the court considers various factors, including the financial needs and circumstances of the claimant and the competing interests of other beneficiaries.

If you need help, contact [email protected] or call 02 9997 7200 for expert legal advice.