Wills
Why a Will Matters
A Will is a crucial legal document that outlines your wishes for your estate after you pass away. It typically covers:
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How your assets will be distributed and who will inherit them
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The appointment of an executor (or multiple executors) to manage your estate
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Naming a guardian for your children and establishing any necessary trusts for beneficiaries
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Any specific requests regarding your funeral or memorial arrangements
What Happens Without a Will
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No appointed executor
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Potential for unwanted administrators
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Higher costs and delays
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Risk of unintended beneficiaries
Common Will Structures
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Simple Wills – Straightforward distribution of assets
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Mutual Wills – Two people agree not to change their wills, often used in blended families
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Wills with Testamentary Trusts – Offers tax and asset protection benefits. Learn More →
What to Include in a Will
Creating a Will involves several key decisions. Before consulting a professional, consider the following:
An executor is an individual or organisation responsible for administering your estate in accordance with your Will after you pass away.
It is essential that your executor is knowledgeable about legal, financial, and taxation matters and can remain impartial in the event of any disputes. The role can be both emotionally demanding and time-consuming, so it is important to choose someone you trust and who can handle these responsibilities.
You may opt to appoint an independent professional to act as your executor. This can help ease the burden on loved ones during what is often a challenging and emotional time.
Listing all your assets, whether owned solely or jointly, is essential when preparing your Will. Providing your executor with a record of your assets and liabilities, or ensuring they know where to find these details, can streamline estate management and prevent unnecessary delays.
Your asset list may include:
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Real estate or land (including any mortgages or secured loans)
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Business assets
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Cash and bank accounts
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Shares and investments
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Valuable items such as artwork, jewellery, or vehicles
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Other assets like intellectual property, royalties, patents, and copyrights
Assets held in companies or trusts may require specialised advice, as they are often subject to different legal considerations.
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Appointing a Guardian for Your Children
If you have children under 18, it’s important to nominate a guardian in your Will to care for them and make key decisions if both you and the other parent pass away before they reach adulthood.
Choosing a Guardian
Selecting a guardian is a significant decision, ensuring you are comfortable with who will take on this responsibility. You may appoint one or more guardians, but it’s crucial to discuss the role with them beforehand.
A guardian is responsible for long-term decisions about your child’s education, religious upbringing, health and lifestyle.
Important Discussions
Before finalising your decision, consider discussing:
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Living arrangements (e.g., will your child move in with the guardian, or will the guardian move into your home? What if the guardian is an elderly grandparent living in a retirement village?)
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Education plans
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Financial support and access to funds
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Establishing a trust for your child in your Will
If No Guardian is Appointed
If no guardian is named in a valid Will, a relative or close family friend, such as a grandparent, aunt, uncle, sibling, stepparent, or family friend, can apply for guardianship. In such cases, the Family Court will determine who is most suitable.
When a Guardian is Appointed Despite a Surviving Parent
If you appoint a guardian while the other parent is still alive, the guardian will share responsibilities with the surviving parent. However, if the surviving parent objects, the appointed guardian may need to seek a decision from the Court.
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A beneficiary is an individual or organisation, such as a charity, that receives a gift, benefit, or share of your estate after your passing.
When choosing beneficiaries, it’s also important to consider who should receive their share if a beneficiary passes away before you.
After your death, beneficiaries generally have rights, including:
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Being notified of their inclusion in a valid Will
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Receiving a full copy of the Will
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Being informed of any legal proceedings, claims, or disputes involving the estate
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Updates on any delays in the administration process
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Receiving their inheritance within a reasonable timeframe, though certain circumstances may cause delays
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Choosing Gifts for Your Beneficiaries
When creating your Will, you need to decide what gifts you want to leave to your beneficiaries. There are different types of gifts, including:
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Monetary gifts – You may wish to include wording that accounts for inflation to ensure the value of the gift does not diminish over time.
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Specific assets – This can include real estate, shares, motor vehicles, furniture, jewellery, or any other possessions you own at the time of your passing.
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Residual estate – This refers to what remains of your estate after all debts, expenses, and specific gifts have been distributed.
If you do not allocate any specific assets or monetary gifts, your entire estate will be distributed as a single gift, rather than as a residual portion.
Ensuring Your Will Covers Your Entire Estate
It is crucial that your Will is properly drafted to account for your entire estate. Any assets not specifically covered by your Will may be distributed according to intestacy laws.
Gifts Held in Trust
You may also choose to place gifts in a Trust, allowing for controlled distribution under specific terms. There are various types of Trusts that can outline how and to whom gifts are distributed, providing additional flexibility and protection for beneficiaries.
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Although pets are legally considered property, they are often valued as family members. Their ongoing care and welfare should be included in your Will and estate planning.
Choosing a Caregiver
You can nominate a trusted friend or family member to look after your pet. It’s important to discuss this with them in advance to ensure they have the time, ability, and willingness to take on the responsibility.
Financial Support for Pet Care
You may choose to leave a sum of money to the nominated caregiver to help cover expenses or as a token of appreciation for taking on the care of your pet.
Other Options for Pet Care
If no suitable caregiver is available, you might consider:
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Establishing a pet trust – A trust can be set up with funds and specific instructions for the care and maintenance of your pet, managed by your estate’s executor.
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Donating your pet to a shelter or charity – Some animal welfare organisations and rescue services accept pets for rehoming. However, certain organisations may require a financial contribution to cover care costs, so it’s best to check their policies in advance.
Key Considerations
When planning for your pet’s future, think about:
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Their expected lifespan
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Ongoing expenses such as veterinary care, food, insurance, and other needs
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Ensuring a reliable caregiver is in place for their long-term wellbeing
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A Trust is a financial arrangement where a person or entity holds assets, such as property, cash, or shares, on behalf of and for the benefit of another. Trusts can be established for various reasons, including:
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Providing ongoing financial support for beneficiaries, such as children or grandchildren
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Facilitating tax-effective estate planning
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Supporting a charitable cause
Types of Trusts
Choosing the right type of trust depends on your specific needs. Common types include:
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Trusts for children and young adults – Ensuring financial support until they reach a designated age (e.g., 18, 25, or beyond)
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Trusts for vulnerable beneficiaries – Protecting assets for individuals who may struggle to manage their finances or are at risk of financial exploitation
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Charitable Trusts – Providing long-term financial contributions to a chosen charity
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Special Disability Trusts – Offering financial support for a beneficiary with a severe disability, ensuring their needs are met
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Accommodation Trusts – Holding property for a beneficiary who requires housing support
Role of the Trustee
The Trustee is responsible for managing the assets within the Trust. Given their significant control, it’s essential to choose someone who is trustworthy, financially capable, and able to fulfill the role’s legal and administrative responsibilities.
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To simplify the process for your executor when closing or transferring accounts, keep a record of your existing accounts and memberships, including:
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Bank accounts
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Superannuation and life insurance policies
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Utility providers (electricity, gas, water)
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Club memberships
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Online accounts (email, social media, loyalty programs)
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Digital records (photos, documents stored in cloud-based services)
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Organisations you have a formal relationship with
Once you’ve compiled this information, store it separately from your Will. However, inform your executor, family, or trusted friends where to find the list, as it will assist them in managing your estate efficiently.
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Ensuring a Will is Valid
For a Will to be legally valid, it must:
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Be in writing, either typed or handwritten;
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Be signed by you, or by someone else on your behalf and in your presence if you are unable to sign yourself; and
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Be witnessed by two adults who are present at the time of signing (note that witnesses cannot be beneficiaries).
Updating your Will
It's important to review your Will every two to five years or whenever a significant life event occurs. Key events that may require an update include:
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Marriage or remarriage
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Having children or grandchildren
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Significant changes to your financial situation
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Separation or divorce
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Moving overseas or acquiring international assets
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The death of a beneficiary or executor
Changes in your personal or financial circumstances can impact the terms of your Will, so regular updates ensure it continues to reflect your current wishes and legal requirements.
Storing your Will
Ensuring your Will is stored securely and that your executor, beneficiaries, and family know where to find it is essential. A Will is only effective if its existence and location are known.
Risks of Storing Your Will at Home
Keeping your Will at home can lead to it being:
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Lost – Making it difficult or impossible to execute your wishes
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Damaged – Potentially invalidating its contents
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Stolen or destroyed – Leading to disputes or intestacy issues
If your Will cannot be found, there is a risk that:
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Your assets may not be distributed according to your wishes
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Additional legal costs may arise, causing delays and complications for your beneficiaries
Secure Storage Options
Many people choose to store their Will with their solicitor, ensuring it remains safe and accessible when needed.
Cost of Making a Will
The cost of preparing a Will depends on various factors, such as:
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The types of assets you own
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The complexity of your wishes for asset distribution
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Who drafts the Will for you
ESSENTIALS PACKAGE
$800
PLUS GST AND DISBURSEMENTS
Includes:
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Basic Will
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Power of Attorney
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Enduring Guardianship
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Safe custody with Dormer Stanhope
Get the must-haves sorted without the fuss. Our Essentials Package covers the basics to make sure your wishes are clear and protected.
CUSTOM PACKAGE
FROM $950
PLUS GST AND DISBURSEMENTS
Includes:
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A Will tailored to your specific needs, for example, if you own a business, have a blended family, a self-managed super fund, or require a long-term trust (known as a testamentary trust) or certain conditions in your Will
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Power of Attorney
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Enduring Guardianship
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Safe custody with Dormer Stanhope
Why Choose Us
As lawyers specialising in wills and estates litigation, we have handled countless will dispute cases. We have seen the problems that might arise from a poorly drafted will. Our experience in these cases is what sets us apart from traditional estate planning lawyers.
We offer several advantages, especially for complex or larger estates:
Expertise in Dispute Resolution
We are well-equipped with the knowledge to resolve disputes that can arise during estate planning and execution. We will be able to identify potential conflicts beforehand and structure your estate plan in a way that minimises the risk of future litigation.
Understanding of Litigation Risks
We have firsthand experience with the pitfalls that can lead to disputes over wills and estates. We will use this knowledge to draft an estate plan that is less likely to be contested, protecting your wishes and your beneficiaries.
Protection Against Claims
We can provide advice on how to protect your estate from potential claims by creditors, ex-spouses, or estranged family members. Our strategic approach can safeguard your assets and ensure they are distributed according to your wishes.
Complex Estate Management
If your estate involves complicated aspects like business organisations, multiple properties, or assets that span different jurisdictions, we will be able to navigate these complexities. We can ensure that your estate plan covers all the legal requirements and reduces the likelihood of further disputes.
Current Legal Knowledge
Estate law is constantly evolving. We are always keeping up to date with the latest legal developments and changes, ensuring your estate plan remains compliant with current laws and regulations.
Comprehensive Estate Planning
Beyond just drafting a will, we can help with a range of estate planning, including trusts, powers of attorney, enduring guardianship, and more. Our comprehensive approach ensures all aspects of your estate are covered.
Peace of Mind
Knowing that your estate plan has been prepared with the possibility of future disputes in mind can provide significant peace of mind. You can be confident that your wishes will be honoured, and your beneficiaries are protected.
Engaging us for your estate planning can prove especially beneficial if you anticipate any complexity or contention in the administration of your estate. Our specialised skills and experience can make a significant difference in ensuring your estate is secure and your planning intentions are fully realised.