Wills & Estate Planning
Preparing a Will and planning your estate are important ways to help protect your assets and ensure that your loved ones are provided for after you die. Estate planning is an active process of re-evaluating your circumstances in life as they change. In addition to having a valid Will, it can involve matters such as asset protection, tax minimisation, and testamentary trust arrangements.
Leaving clear instructions about what should happen after you die can help minimise stress for your family at a time when they are grieving. Whether your affairs are simple or complex, we can provide personalised service to address your needs.
Preparing a Will
Preparing a Will is an important way to provide security for your family and loved ones after you are gone.
A Will is a legal document that records how you would like your affairs to be dealt with after your death. A Will appoints an executor/s to manage and finalise your affairs and sets out how your assets will be distributed to your beneficiaries. Your Will can also appoint guardians for any minor children you leave behind.
Anyone over the age of 18 years who has testamentary capacity (mental capacity to understand and agree to a Will) can make a Will.
We strongly recommend you obtain legal advice in drafting and executing your Will, If not drafted and executed properly, a Will can be deemed invalid by a Court or have unintended consequences, which unfortunately will not be evident until after you are gone. If your Will contains ambiguities it may need to be interpreted by a Court, which can create a delay in having your assets distributed and lead to disputes among your family.
What happens if I die without a Will?
Dying without a valid Will is referred to as dying intestate. In such cases, your assets will be distributed according to a prescribed formula set out in the laws of intestacy, which may have a very different outcome than what you wished.
The family of a deceased person who dies intestate will usually need to apply to the Court for letters of administration which can add complexity and cost when finalising the estate. Letters of administration may also be required if a Will is invalid, or if a Will does not deal with all the deceased’s property.
In Victoria, the Probate and Administration Act 1958 determines how assets will be distributed if a person dies intestate. The legislation outlines a formula for the division of assets, depending on the circumstances of the deceased. Largely, the categories of people who may be entitled to receive property where a person dies intestate are:
- Partners of the deceased
- Children of the deceased
- Parents of the deceased
- Siblings of the deceased
- Grandparents of the deceased
- Nieces and nephews of the deceased
- Aunts and uncles of the deceased
- Cousins, grand-nieces or nephews of the deceased
What is a Testamentary Trust?
As part of your estate planning, you may wish to establish a testamentary trust within your Will. The trust is created upon a person’s death and a trustee is appointed to manage the assets for the benefit of the beneficiaries. The advantages of a testamentary trust include the ability to provide for minor children or other vulnerable beneficiaries, the protection of assets and potential tax benefits.
Business Succession Planning
If you are involved in a business, it is important to have a succession plan in place. A business succession plan can provide much-needed guidance in case a business owner is suddenly incapacitated, suffers a catastrophic injury or dies unexpectedly. Having a plan in place can also make the transition of your business easier when you retire. You may want to ensure that the operation of your business can continue after you leave your position. We can provide tailored advice in this area.
If you need assistance, contact [email protected] or call 03 9741 3777 to arrange a consultation with an experienced estate planning lawyer in Werribee.