Wills & Estates

Wills & Estates

An effective Wills, Estate and Succession planning involves a careful planning of your assets upon your passing or death. Sometimes a legal Will can provide an effective estate plan, however this is not always the case.

If your estate planning is not prepared in a tax effective way, your beneficiaries could lose the benefit of thousands of dollars.

If you have superannuation benefits depending on your circumstances, these may need to be dealt with separately in your Will. If you have a family trust or other types of trust set up, these may also need to be dealt with separately.

If you have life insurance, these should also be reviewed as part of your estate plan.

You can protect your beneficiaries from creditors or debtors by creating a testamentary trust for your beneficiaries.

Powers of Attorney are another very important factor in the management of your affairs, if you ever suffer a temporary or permanent loss of mental capacity. Powers of Attorney must be distinguished from Advanced Health Directive (AHD). Powers of Attorney are relevant to a person’s property and finances. A legally appointed AHD has the powers to make decisions about your health and medical treatment in circumstances where you are unable to make such decisions for yourself.

Below you can find a list of FAQs relating to effective succession planning. If you have any questions or would like any more information, please call us on 1800 683 928 or via our online enquiry form.

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Frequently Asked Questions

  • What is a Will?

    A Will is a legal document that directs how your assets should be distributed and appoints guardians of any children. It appoints an executor to oversee this process. A properly drafted, up-to-date Will is the only way that you can be sure your assets will be dealt with as you wish.

    Why do I need a legal Will?

    If you pass away and do not leave a valid Will, your estate will be distributed in accordance with strict rules dictated by legislation, which operate without any regard to what your personal preferences may have been. It can also add significant cost and delay to the administration of your estate.

    Having a Will relieves your loved ones of this burden and ensures that your loved ones are placed in the best possible position in the event of your death.

  • How do I make a Will?

    No matter the size of your estate you should consider making a Will, if you are over the age of 18 (or under the age of 18, if married) and are of sound mind, memory and understanding.

    A court can also approve a Will being made for someone who cannot legally make a Will themselves. For example if someone has lost their mental capacity to make a Will, but it is known how they wanted their property distributed, a court can authorise a Will to be made for them so that the property goes as they wish and not in accordance with the laws of intestacy.

    It is important to consider potential claimants at the time of drafting your Will as it may be possible to restructure assets and investments or carefully draft your Will to reduce or restrict potential claims against your estate.

  • What is involved in making or preparing a Will?

    The process of making a Will involves an examination of your assets and liabilities and your personal circumstances.

  • How often should I review my Will?

    A will should be reviewed every 3– 5 years or as soon as your personal or financial circumstances change. Marriage, separation, children, property investment or establishing a company to run your business are all good reasons to review your Will.

    For more information about Wills, please contact us on 1800 683 928 or via our online enquiry form.

  • What is a Testamentary Discretionary Trust (TDT)?

    A Testamentary Discretionary Trust (TDT) is a trust that is written into your Will and provides your beneficiaries with asset protection, flexibility and tax effectiveness.

    What are the advantages of a Testamentary Discretionary Trust?

    A TDT is highly desirable, if you have a beneficiary in your Will who:

    • has a disability;
    • suffers from an addiction;
    • is poor at handling his/her finances;
    • practices in a profession which has a high risk of litigation;
    • is in a high tax bracket; or
    • has a history of bankruptcy.

    By gifting your estate to these beneficiaries by way of a TDT, you can protect their inheritance from future loss.

    For more information about Testamentary Discretionary Trusts, please contact Turner Freeman’s Wills and Estates Department.

  • What is a Power of Attorney and what is it's benefit?

    There are two types of powers of attorney:

    • General Power of Attorney; and
    • Enduring Power of Attorney.

    Both types of Powers of Attorney are formal legal documents which involve you formally giving someone else the power to make decisions on your behalf.

  • General Power of Attorney (GPOA)

    Under a General Power of Attorney you can only give someone else the power to make financial decisions on your behalf for a specific period/event.

    A General Power of Attorney is used while you have capacity and are able to make your own decisions and ends when you lose that capacity. A typical example of a General Power of Attorney is appointing someone as your Attorney to pay bills on your behalf while you are overseas.

  • Enduring Power of Attorney (EPOA)

    An Enduring Power of Attorney (EPOA) is one of the most powerful documents you will ever sign.

    It is a legal document in which the Principal (you, the person making the Power of Attorney) authorises another person (the Attorney) to act on your behalf in the management of your affairs. ‘Enduring’ simply means that the power continues even after you lose capacity to make decisions yourself.

  • Why should I give someone Enduring Power of Attorney (EPOA)?

    An EPOA enables you to decide who will make financial and/or health decisions for you if you lose capacity.

    • Personal/health matters- include where and with whom you live; day to day issues like diet and dress and whether to consent to particular health care for you.
    • Financial matter- include all financial matters such as receiving income, paying bills, investment and financial planning.

    If you lose the mental ability to look after yourself, either temporarily or permanently, your financial attorney may have complete control over all your assets and your personal/health attorney may have complete control over your personal and lifestyle matters.

    If you lose capacity to make decisions for yourself and you do not have a current valid EPOA, the Guardianship and Administration Tribunal may be required to make an Order appointing the Public Trustee, another Trustee company or some of your family or friends to act as your Administrator.

    If you lose mental capacity as a result of illness or accident and you don’t have an EPOA the Public Trustee will be your administrator until the Guardianship and Administration Tribunal makes other orders. Making an EPOA now allows you to choose who will make these decisions for you if the time comes.

  • Who should I appoint as my Attorney?

    We recommend you appoint someone you trust. You can appoint anyone who is over the age of eighteen (18) years, not a paid carer or heath-car provider and is not bankrupt or insolvent.

    We suggest to our clients that they sign an enduring power of attorney and not only name their preferred attorney but to also specify an alternate attorney in case their first choice is unable to act.

  • Changes to Enduring Power of Attorney (EPOA)

    You can make changes to your EPOA at any time as long as you still have capacity to do so.

    To make changes to an EPOA you must execute a Revocation of Enduring Power of Attorney Form and serve it on the Attorney/s you wish to remove notifying them of your decision.

    We recommend you review your EPOA every 3-5 years to ensure you are still happy with the people you have appointed as your Attorney/s. For more information about Enduring Powers of Attorney, please contact Turner Freeman’s Wills and Estates Department.

  • What are Advance Health Directives (ADH)?

    An Advance Health Directives (AHD) is not the same as an Enduring Power of Attorney (EPOA). An AHD goes further than an EPOA and allows you to give directions as to your future health care that will have effect after you lose capacity to make the decision yourself.

    The purpose of an AHD is to give you the confidence that your health care wishes will be carried out if you cannot speak for yourself. An AHD is particularly important for people who are concerned that have no close relatives or friends who are aware of their health care wishes.

    You can direct the type of medical treatment or palliative care you wish to receive if you are diagnosed with a terminal, incurable or irreversible condition or are permanently unconscious or in a persistent vegetative state.

    For AHD to be valid, it will be forwarded you to take to your doctor for advice on various medical procedures. You must then sign the AHD in the presence of your doctor who will certify that you understand the decisions you have made in your AHD.

    An AHD cannot be used to permit voluntary euthanasia, or to accelerate the death of a person.

    We recommend you review your AHD every 3 – 5 years.

    For more information about Advanced Health Directives, please contact Turner Freeman’s Wills and Estates Department.

  • What is Estate Administration?

    The administration of a deceased estate can be an overwhelming and time-consuming process which can come at a very difficult time for the Executor, who is often a grieving relative.

    An Executor is responsible for carrying out numerous tasks in the administration process, including collecting all assets, paying all liabilities and distributing the estate in accordance with the deceased’s last Will.

    How can we help you?

    Turner Freeman Lawyers can assist the Executor by:

    • Attending to all aspects of deceased estate administration including assisting with funeral arrangements;
    • Notifying all relevant parties of the death, including banks, Medicare, ATO and Electoral Commission etc;
    • Advising on whether a Grant of Probate or Letter of Administration is required;
    • Advising on capital gains tax and stamp duty issues;
    • Liaising with Trustees of superannuation funds for payment of death benefits;
    • Preparation of Transmissions by Death and Records of Death to transfer legal title in real estate to the Executor and/or beneficiaries.

    For more information about Estate Administration, please contact Turner Freeman’s Wills and Estates Department.