Wills & Estates

Making an estate plan and preparing a valid Will can help reduce some of the stress and uncertainty your family will likely face when you die.

Planning for what lies ahead can only be accomplished with considered and meticulously prepared advice from experienced Wills and Estate lawyers. Our Wills and Estate team has years of experience in all areas of law from preparing a Will to administering estates.

Our estate planning lawyers can:

• Advise you regarding estate, probate and succession laws
• Prepare a Will that maximises the inheritance for your family
• Set up family and testamentary trusts to help protect assets and beneficiaries
• Provide advice regarding your choice of executors and trustees
• Minimise the potential that your Will is contested and subject to litigation
• Advise you regarding estate tax (including capital gains) and financial concerns
• Safely store your Will and other important legal documents

• $660 for a single standard Will
• $1200 for a couples standard Wills

For complex Wills, we offer a 30 minutes free consultation. A complex Will comprises some of the following:

• Blended families
• Your assets are valuable enough that estate taxes will apply
• You wish to establish a special needs trust for a child with a disability
• You want to set up a trust so that your children receive a certain sum of money at a particular age
• You expect to accumulate more assets
• You have a previous spouse
• You want to create a joint Will with your spouse
• You own a business

What is a Will?

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

A Will can also contain provisions regarding how the deceased person’s remains are to be dealt with and appoint guardians for any children of the deceased.

The do-it-yourself trend and the internet have made writing your own Will seem like an easy way to get your affairs in order. But it’s not as simple as it seems and there is no substitute for proper advice from a qualified lawyer, no matter how straightforward you think your affairs are.

What appears to be a cost-effective solution can be financially and emotionally draining for those you leave behind should a homemade Will not give effect to your real intentions. There are many examples of this happening.

Having a lawyer prepare your Will and advise on estate planning is a small price to pay to ensure your wishes are carried out after you die.

Who can make a Will?

Anyone aged 18 years and over can make a Will, so long as they have the mental capacity to understand what they are doing. People under 18 years can only make a valid Will if they are married or have a court order to authorize making a Will.

Challenging the validity of a Will

For a Will to be valid it must be in writing, intended to be your Will and signed by you on each page in front of at least two witnesses. The Will must be dated at the time of signing. If a person making a Will does not freely and voluntarily make the Will or have testamentary capacity with the intention to make a Will, it may be invalid.

You may be able to challenge a Will if you believe that the Will is a forgery or if the person lacked mental capacity to make it. These types of claims often arise where the deceased was elderly and/or sick for substantial periods of time or suffered from dementia or another type of memory loss.

A Will may also be challenged on the basis that undue influence was used on the deceased or if there was fraud involved, or if the Will contains obvious errors or mistakes.

Estate litigation can be complex and emotional, especially where family circumstances are complicated and the disputes that arise may have been years in the making.

Have you been left out of a Will or treated unfairly from your inheritance?

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 eligible to make a claim against the estate.

Eligibility to make a claim is quite specific and varies from state to state. Depending on the circumstances, it may include:

• a spouse or de facto partner including a same sex partner
• a former spouse or de facto partner
• a child, stepchild or grandchild
• a parent of a child of the deceased
• a parent or sibling of the deceased
• a person who was financially dependent on the deceased

This is a general guide only and it is important to discuss your circumstances with an experienced estate litigation lawyer. Time limits for making a claim also apply.

Many family provision claims can be settled out of Court, and our experienced team will do all that they can to negotiate a fair settlement. That said, should Court proceedings become necessary to pursue your rights, we will advocate strongly on your behalf.

What is a bequest in a Will?

A bequest in a Will refers to the act of giving a gift of something you own to a person or organisation.  The person or organisation receiving the item is the beneficiary.

A bequest is a gift which is made upon your death and can be made through your Will.

You can choose to make a bequest in a Will in a number of different ways, either monetary, property or a specific item.

For a specific bequest, you would outline the exact item, property, or share that you wish to gift in your Will.

There is also a range of other types of bequests available to you. If you would like to know more about bequests, we can help you understand these in more detail.

Testamentary Trust

A Testamentary Trust in a Will, in appropriate cases, offers an excellent way to protect your assets and to reduce the tax paid by your beneficiaries.

A few benefits of Testamentary Trusts to consider are as follows:

• Asset Protection
• Income Tax benefits
• No Limit on Beneficiaries
• Pension advantages
• Exemption from transfer fees on properties

Probate and Estate Administration

Being the executor of a Will comes with a great deal of responsibility and involves a range of tasks. Our estate team can advise you of your legal rights and duties, apply for a grant of Probate if necessary, and assist with the administration of the estate.

We can help with:

• Interpreting the Will of the deceased in terms of estate laws
• Informing government bodies including Centrelink and Veterans Affairs
• Dealing with intestacy (where there is no Will) and applying for Letters of Administration
• Identifying estate assets and liabilities
• Obtaining valuations of estate property
• Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
• Selling or transferring estate property including estate auctions
• Paying estate debts including mortgages, funeral costs, and testamentary expenses
• Advice on family and testamentary trusts
• Administering trust funds
• Distributing bequests and inheritances to beneficiaries
• Organising information for estate tax returns
• Family mediation and negotiation

If you need any assistance, contact our lawyers at [email protected] or call 03 9670 7440 for expert legal advice.