Brisbane’s Legal Lowdown: Is a “Free” Will from the Public Trustee really free?

Sofie: And now it’s time for this week’s Brisbane Legal Lowdown with Attwood Marshall Lawyers. And when it comes to writing a will, many Australians often turn to the public trustee, attracted by the idea of it being a free will service. But what exactly does that mean? Is a will that you get from the public trustee the same as the kind of one that you would have if it was prepared by a lawyer, and other costs that people don’t know about embedded there, that could actually cost you more later?

Today, we’re going to explore some of the key differences between the public trustee’s estate planning service and one that would be offered by lawyers like you would receive from Attwood Marshall Lawyers.

We’ll also talk about some of the historical concerns that have been raised in the media and through the public inquiries that have happened over the years about how the public trustee manages deceased estates and acts as a financial administrator for vulnerable people.

And if you would like to join the discussion, now’s the time to either jump on the open line 133 882 or send through questions that you might have this afternoon for Duncan McDougall on 0499 880 882. He is the Estate Litigation Senior Associate at Attwood Marshall Lawyers, and he joins us once again. Nice to see you, Duncan.

Duncan: Nice to see you, again.

Sofie: So firstly, can you give us a bit of an overview of what the services are that the public trustee would offer when it comes to estate planning?

Duncan: Yeah. So, public trustees, it’s a government body at the end of the day, they do have services offering the preparation of wills, powers of attorney, things like that. They’ve also got the capacity to act as managers of estates, so, in their roles as a potential executor of an estate.

Sofie: And do they also step in if you die and you’re intestate and you don’t have a will?

Duncan: Potentially yes, but there is a legislative list of people with who have priority to apply to be in that role, especially if you don’t have a will.

Sofie: When people draw up a will with the public trustee, do they do it because it’s perceived as being a free will service?

Duncan: Generally, yes, but that’s just something to be careful because there is a catch to that. So generally, they will have, it’s a more of a one size fits all approach that they take and it’s generally for very simple straightforward estates.

When you’ve got a complex administrative thing to be aware of, and the level of complexity with an estate, whether it be blended families, complicated business structures, taxation things to be aware of, there may be some additional fees associated with that.

Sofie: What kind of things should people be aware of for, sort of, for later on?

Duncan: Later on, things to be aware of is that even if an executor is, sorry, the public trustee is appointed as the administrator of the estate, or also known as the executor of the estate, they will charge a fee to administer that estate, and that can run up, especially if it gets contentious, especially with beneficiaries.

Sofie: Well, I guess then what we’re looking at is having you help us understand what the difference is between having that will. whether or not it’s, you know, super complex, say it is somewhere in the middle, you’ve got a couple of little extra things that might be beyond what would be the most simplified version of estate planning. If it’s drafted by the public trustee versus getting advice from someone like yourself who’s experienced in estate planning as a lawyer, sort of what’s the difference then?

Duncan: I think at the end of the day, it’s that personalised, tailored approach that you get from an experienced estate planning solicitor. They can really look at your circumstances and see what kind of issues that need to be raised.

Again, they don’t take this one size fits all approach. You’ve got something to, we take a summary of your assets, your liabilities, see what sort of issues that could creep up down the track and then give the appropriate advice to maybe manage your estate in a different way or restructure your estate in a different way to avoid those risks down the line.

Sofie: Graham wants to know what age adult children should have their own wills?

Duncan: Earliest is 18, so I mean again you may think that there’s people of that age haven’t accumulated any assets, but they may have been working for some time. They may have generated some superannuation as well. It’s all good just to get a bit of a baseline even if it’s a general very straightforward estate because at the end of the day, if an estate is to be administered and there’s going to be cost to administer that estate.

So, when you don’t have a will, then there’s going to be further costs to apply to the court, especially a surviving parent or family member, to be appointed as the administrator to administer that estate as small as it is.

Sofie: And that has a cost attached to it?

Duncan: There will be a cost attached to that as well.

Sofie: Yeah, interesting. I hadn’t really given that any thought. My kids are in their 20s and none of them have wills.

Duncan: Yeah, yeah. And that’s generally where it’s unfortunate, but it does happen. We’ve seen estates before where you’ve got a very young person.

Sofie: I think that’s what it is. Do you know what I really think it’s the mental hurdle of not even wanting to contemplate that that would be a reality.

Duncan: Yeah.

Sofie: That you would need to even think about that being a part of your lived experience and so I think that’s probably why you push it to the back of your mind. It’s like, no, that could never possibly be what I have to deal with?

Duncan: That’s Mum and Dad’s job. You know, let’s let they they’re almost expecting all, you know, an inheritance is coming from them. But again, I think the biggest thing is the cost that’s going to and just the length and time to deal with your estate.

Sofie: So, people want to know then, and I know that this is difficult because you know, obviously every circumstance will be a little bit different, but is the barrier for people coming to have their will drawn up by a lawyer, the perceived cost that’s involved with that?

Duncan: Potentially that is an initial worry, but I would say the cost of getting it done right now far exceeds the cost of going wrong down the track.

So, when we see wills that we’re prepared by the public trustee down the track, you can sometimes just from experience you can tell that they haven’t got that appropriate advice, especially with their asset structure, at the time they prepared the will, which then just leads to more complications and costs get blown out of proportion.

Sofie: So, can you give us an example of when that’s happened in your experience?

Duncan: Sorry in which?

Sofie: When you had a will have to come to you, then that was drawn up by the public trustee, that then in hindsight. people are like help?

Duncan: Well, a lot of the time too family are wondering, well, why were they appointed as the executor when you’ve got that in place. People complain it’s a bit bureaucratic, there’s costly delays. And in in terms of their whilst administrating the estate, they’re wondering, well, why can’t this be done sooner? There’s a lack of disclosure as to what’s happening, whereas if you’ve got a family member appointed in that role as the executor, a lot of the times they’re not going to be charging for their roles in that place as well.

Sofie: So, the public trustee, if they’re appointed executor of the estate, will obviously take a longer period of time to execute the wishes. And there is a cost associated with that execution?

Duncan: Correct. So, when times when you’re looking at getting your estate planning sorted, it’s a conversation you’ll have with your solicitor as to who you think would be the best appropriate person, whether it be a financial or a professional person in that role or could potentially be a family member or a close friend who can manage it.

Sofie: I have to say we’ve also seen media coverage and government inquiries highlighting some of the concerns about the public trustee, especially around how they manage estates and handle financial matters for vulnerable clients.

We have an ageing population; we’ve talked about this in other capacities in the past. So, what are some of the issues that have been raised that people should be aware of in that capacity, in that environment?

Duncan: Well, I’ve just seen one recently where there’s an issue with somebody of, and this is before they’ve passed away, where the public trustee is appointed as a financial administrator of somebody who’s had dementia. A lot of the times, there’s some concerns about that, that asset management. And in that case, specifically, there’s a parliamentary inquiry now dealing with the fees that were charged in dealing with this person’s finances and dealing with those specific assets. And it’s an ongoing thing where it’s, I think it’s the biggest thing for people is the unexpected costs that come out of that, especially even if whilst they’re still alive, dealing with their finances.

So, the important thing there is get a power of attorney done as well, appoint somebody who can manage your personal and financial affairs whilst you’re alive, to avoid it having to be incurred by the public trustee.

Sofie: Which I think is going to be part of your answer for Bretto, who I have to say, I appreciate that he’s come to this with a question for us that comes with a sense of humour. He says, I want the extra precaution of having a living will, in the case that I’m bedridden or I’m in a vegetative state and I also want a clause that says if they can’t find anyone to wax my mono brow, then I give them permission to flip the switch. Is this something that the public trustee could sanction? So can you do a living will through the public trustee?

Duncan: When you say a living well, I think they may be referring to a trust or a thing like that as well, whereby you’ve got some trust assets there depending on what they mean by a living will, but I suspect they mean by a trust, in which case a solicitor is going to have more tailored advice. So, we’re going to review those trust deeds. The public trustee may incorporate that. But again, they’re going to be charging for those extra things outside of a standard type of will.

Sofie: And if he’s worried about not being able to take care of himself in a vegetative state, then you also want a power of attorney.

Duncan: Exactly, that’s number one priority there.

Sofie: Probably more so than anything else. Let’s hope, Bretto, that that doesn’t become any part of your lived experience.

For people who don’t have someone that they might be able to have trust as the executor or someone who is a trusted person to manage their affairs if they find themselves in a situation where they have lost capacity, what is the alternative to appointing a public trustee?

Duncan: Alternative there, and many people have been in those situations before where they may not have those immediate family members who can take on that role. And again, that’s why it’s important to go to a solicitor because at the end of the day the solicitor may be in the position, or the firm itself, the senior director or principal of that firm, can be appointed as that administrator.

Sofie: Finally, how quickly can you turn a will around?

Duncan: Ohh, as quickly as you need.

Sofie: Because, Karen says, can you please ask if anything can be done regarding my will within two weeks? I fly out on the 9th of July and she said the old will is not appropriate. Now I want simply for my estate to be left to my only son along with my grandchildren.

Duncan: Yeah. Depending on the complexity, but if it’s a very standard straight forward, we can get it turned over pretty quickly.

Sofie: Karen, if you want to give us a call, you can talk to the team, they’ll be able to put you in touch with the team that that will look after you at Attwood Marshall Lawyers.

We’ll put Duncan to the test, if he can do it in two weeks for you. And now the challenge has been issued.

Duncan: That’s it.

Sofie: As always, lovely to have you talk to us and thank you for answering the questions from me and from the listeners this afternoon from Attwood Marshall Lawyers, Estate Litigation Senior Associate Duncan MacDougall. Will talk again.

Duncan: Thanks Sofie.