Attwood Marshall Lawyers’ Wills and Estates Senior Associate Natalie Comerford explains why you need an up-to-date Will, an Enduring Powers of Attorney and a binding death benefit nomination for your superannuation as we enter the new year.
Just as it is important to have your car serviced before heading off on the family road trip or double-checking your insurance cover just in time for the summer storm season, it is imperative to ensure your most basic legal affairs are in order, including having an up-to-date, legally valid Will, an Enduring Power of Attorney and a Binding Death Benefit Nomination.
As we prepare for the beginning of 2026, our estate planning lawyers continue to take appointments for clients who want to take this opportunity to get their estate plan in order during the holidays.
By putting a proper estate plan in place, you can begin the new year with peace of mind, knowing that if the unexpected happens, you and your family will be covered.
Research has shown that mortality rates actually increase during the festive season – a phenomenon that has been dubbed the “Holiday Death Spike.” A study by sociologist David P. Phillips found that adults across all age groups face higher risks of death from heart disease, respiratory issues, and cancer during the Christmas period.
With that in mind, it is unbelievable that nearly 60 per cent of Australians do not have a Will. Only two-thirds of over-50s have a Will. Even more concerning, the Australian Human Rights Commission found in 2024 that 87 per cent of the population has not set up an Enduring Power of Attorney.
Recent research from Super Consumers Australia, meanwhile, revealed that three-quarters of people have not made a “binding death benefit nomination” for who they want to receive their superannuation after they die.
So, do yourselves a favour and make an appointment to discuss your estate planning as soon as you can. We have a dedicated team of experienced estate planning lawyers waiting to take your instructions over the summer holidays. Call or email us to make an initial, obligation-free appointment.
The three vital documents you need before you travel
Estate planning is a highly personal process and should reflect your unique family situation, assets, and testamentary wishes. There are three vital documents that everyone should have as a minimum.
Your Will
Whether you are travelling or not, having an updated Will is fundamental to ensuring your family are not left with an expensive and time-consuming crisis to navigate. Unforeseen events can occur at any time.
A Will is more than just a written document outlining your wishes or gifting assets. It is about ensuring your wishes are carried out exactly as you intend by giving legal effect to those wishes. You can specify who inherits your estate, include charitable bequests that reflect your values, and provide clear funeral instructions so your loved ones aren’t left guessing during an already difficult time.
For families with complex dynamics (such as blended families, estranged relationships, or children from previous marriages), a Will allows you to navigate these complexities while protecting your assets and intentions.
Crucially, your Will lets you appoint a guardian for minor children and choose an executor you trust to manage your estate efficiently.
Don’t leave these critical decisions to chance or the courts to decide; take control of your family’s future by putting the necessary thought and documents in place.
Your Enduring Power of Attorney (EPOA)
This crucial document applies while you are still alive. In Queensland, it is a single document that allows you to appoint an attorney to make financial, personal and health-related decisions.
New South Wales differs slightly and requires two separate documents (a Power of Attorney and an Appointment of Enduring Guardian) to cover financial and health-related decisions.
If an unexpected event prevents you from returning home, or if you suddenly suffer an injury or illness that impacts your decision-making capacity, an EPOA allows someone you trust to handle your financial and personal affairs.
Whether signing essential documents or making health-related decisions on your behalf, the EPOA ensures your affairs are managed seamlessly – without your attorney navigating lengthy court processes for the power to step in and assist you.
Many people mistakenly believe their loved ones can automatically make decisions. Without an EPOA, however, your family must apply to the Queensland Civil Administrative Tribunal (for Queenslanders) or the New South Wales Civil Administrative Tribunal (for NSW residents). This legal process takes time and requires collating and submitting evidence with the application. Your family is also not guaranteed to be appointed on your behalf.
Read more about Enduring Powers of Attorney
A Binding Death Benefit Nomination – Superannuation
Many people often overlook their superannuation when estate planning. Superannuation benefits are non-estate assets, which means they cannot be dealt with in your Will.
Superannuation benefits require a specific distribution approach. A binding death benefit nomination is a document that lets you specify who should receive your superannuation benefits after your passing. Without this nomination, the superannuation fund’s trustee has discretionary power to choose who should receive these funds, potentially resulting in your assets not going to whom you intended.
To be valid, this document needs to be signed and executed correctly.
Read more about superannuation and succession
Additional estate strategies
An Advance Health Directive (for Queensland) or an Advance Care Directive (for New South Wales) are further estate planning tools that provide written notification of your healthcare preferences and personal and living choices.
These documents do not negate the need for a legally valid Enduring Power of Attorney but support it by providing pertinent, individualised information to ensure your healthcare and lifestyle wishes are honoured.
During a health crisis, families often struggle to make choices and reach unanimous agreements about what should happen and what instructions to give healthcare providers. Keeping this document updated ensures your decision-makers can advocate for you and carry out your wishes and preferences.
A testamentary trust is a good way to protect a beneficiary’s inheritance from bankruptcy, divorce, or taxation implications. The popularity of this type of Will has grown in recent years primarily because it allows the will-maker to exercise control over the future use and application of their assets, unlike a traditional Will where the assets pass directly to the beneficiary personally.
For individuals with beneficiaries who have special needs, a special disability trust can secure lifetime care for vulnerable family members. A little over 20 per cent of Australians live with a disability.
Special disability trusts are a powerful estate planning tool which secures the financial future of loved ones with a disability or someone who does not have the capacity to handle their affairs, ensuring their needs are met long after you’ve passed on. It can also help to ensure the Public Trustee does not become involved in your loved one’s financial affairs later in life.
Attwood Marshall Lawyers – Leading estate planning lawyers
This can be a very busy time of year; however, it can also be an excellent opportunity to tick off the things you did not get to over the past 12 months and review important legal documents before the new year rolls in. Our estate planning lawyers have available appointments throughout December and January to help you write your Will and Enduring Power of Attorney and get your estate plan done.
The process does not have to be overwhelming and is simpler than you may realise!
To understand which documents you may need to put in place for your estate plan or to update your Will, please call our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime. We are working up until Christmas Eve and are only closed on the public holidays over the break.
You can also make an appointment with any of our lawyers by visiting our website and using our online booking app. Our estate planning lawyers can meet with you at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
