Estate Planning

Wills and Power of Attorney

We want to help you plan, protect and preserve your wishes.

Making proper arrangements for your estate is one of the most important things you can do for your family. Attwood Marshall Lawyers is a leading Wills and Estates law firm, with one of the largest and most experienced specialist teams in Australia.

Our clients are never “just a number” – we genuinely care about you and will ensure you get a personalised experience to give you absolute peace of mind that all your legal affairs are in order and your assets are protected.

Our lawyers provide high-quality, professional services relating to Wills, testamentary capacity, advance health directives and enduring guardian and power of attorney documents. When assisting you with your estate plan, we provide comprehensive documents which are clear and precise. Using the most advantageous rules and strategies, we will help to ensure your assets are distributed as you wish after you are gone.

We recognise the complexity of succession law and are highly reputed in the legal industry for our expertise in this area. Our dedicated team of lawyers can assist with everything from simple Wills, power of attorney matters, complex succession planning and asset protection.

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Everyone over the age of 18 years of age should have a properly prepared Will. Having a Will ensures your wishes are carried out on your death. Without a Will, your estate could be distributed unfairly according to a formula set by each State and Territory’s intestacy laws. This could result in some of your relatives receiving more than you wished, while other loved ones not being provided for in the way you intended. Having an experienced Wills and Estates Lawyer draft your Will reduces the risk of someone making a claim on your estate.

A testamentary trust is a trust established in your Will and takes effect on your death. There are many different types of trusts and they are often useful where:

  • you wish to protect assets for your children whilst still providing for your surviving spouse;   
  • a beneficiary is bankrupt or has potential liability issues and is at risk of being sued;
  • a beneficiary is at risk from undue influence or a relationship breakdown; or
  • if a beneficiary has special needs.

 

A simple Will may be unsuitable for tax and asset protection reasons, particularly for large estates. We can review your estate planning needs and discuss your individual circumstances to determine if a testamentary trust may be beneficial.

A Power of Attorney is a legal document authorising another person to act on your behalf in managing your affairs. It can be a useful method of allowing someone to handle your affairs if you take an extended holiday, suffer from poor health, have an accident or reach a stage in your life when you need greater assistance.

This is one of the most important documents you can make in your lifetime. You may give your attorney power to make decisions about personal, health and financial matters. There are two types of Power of Attorney documents – “General” and “Enduring”. Enduring simply means that the power continues even if you lose capacity to make decisions for yourself.

In New South Wales, a Power of Attorney is the legal power to make financial decisions on someone else’s behalf. An Enduring Power of Attorney means that the power continues if the person has lost capacity to make those decisions for themselves. Appointing an Attorney allows someone to handle your affairs if you go overseas, take an extended holiday, suffer from poor health, have an accident or reach a stage in your life when you need greater assistance. This is one of the most important documents you can make in your lifetime.

In addition to appointing someone to look after your financial affairs, in New South Wales in order to appoint someone to have the power to make medical and lifestyle decisions for you, you are required to complete a separate document called An Appointment of Enduring Guardian. An Enduring Guardian’s powers only come into play if you lose capacity.

Every competent adult over the age of 18 has the legal right to give directions about their future health care. If you are unable to make decisions about your health care due to a medical condition such as dementia, stroke or accident, an Advanced Health Directive sets out your views, wishes and preferences around your health care. 

An Advanced Health Directive makes legally binding directions about your future health care, when you are able to voice these directions. These decisions can be about life-sustaining treatment; medical treatment due to cultural or religious beliefs and health care treatment. This document may avoid family conflict by making your intentions clear.

If you carry on business through a partnership or company, you must consider how this affects your testamentary intentions. You may need to include extended powers of Executors in your Will; for example, to continue to carry on your business or profession after your death.

Technically, a person does not own their superannuation balance until it is paid out. In the meantime, it is held by the trustee of the superannuation fund upon trust for the members. This means that superannuation does not form part of a deceased person’s estate until and only if it is paid out to the estate. What happens to the account when a person dies depends upon the terms of the trust deed governing the superannuation fund, superannuation law and the terms of any binding or non-binding nomination made to the superannuation fund.

Under superannuation law, death benefits may generally be paid to one or more of the member’s dependants or their legal personal representative (i.e. their estate), subject to the fund’s governing rules. A dependant for these purposes (known as a ‘superannuation dependant’) includes: a spouse, a child (of any age), and someone with whom the member has an interdependency relationship.

It is important to remember that a superannuation dependant is different to a dependant under taxation legislation. A dependant under taxation legislation includes: a spouse, a minor child, a financial dependant, and someone with whom the member has an interdependency relationship. Where a death benefit is paid directly to a tax dependant, the payment is not subject to income tax. Where a death benefit is paid to someone who is not a tax dependant, it is subject to income tax. The tax consequences to the member’s estate or the intended beneficiaries are important factors in strategising an effective estate plan.

Depending on the factual scenario of the Will-maker, different strategies can be adopted for superannuation benefits. For example, there are obvious tax benefits in nominating tax dependants under a binding nomination. Keeping superannuation outside of an estate can also be an effective strategy to mitigate against a claim against the estate (again, in all states except New South Wales). The appropriate strategy will depend on the individual’s particular circumstances and testamentary intentions.

We can assist with completing death benefit nominations to ensure your superannuation benefits are passed on to your intended beneficiaries after you die.

FAQs

Not having a valid estate plan in place can be both financially and emotionally exhausting for the loved ones you leave behind after you die, no matter how large or small your estate may be. Estate planning is more than just drafting a Will; careful planning of the distribution of your estate involves protecting the assets you have worked hard to acquire and to ensure your assets end up in the hands of those you want to benefit. That includes making sure you plan for assets that fall outside of your estate.

It is important to get the right advice to plan and structure your estate effectively, both to protect your assets after you die, and to cover you in the event you lose capacity while you are still alive.

There are many factors to consider when completing your estate plan, including who will receive your assets, what are the tax implications for your beneficiaries receiving those assets, who you will appoint as your executor, if your circumstances require a testamentary trust, and how you wish your superannuation and life insurance policies to be paid out. An experienced estate planning lawyer can make the process simple and ensure your estate plan is completed effectively, taking into consideration your unique family situation and estate.

If you do not have a Will, then on your death the rules of intestacy will apply. When an estate falls under the laws of intestacy your assets will be distributed according to a pre-determined statutory formula. This means that certain family members will receive a defined percentage of your estate.

Each State and Territory have slightly different legislation which deals with the distribution of an intestate estate. In circumstances where there are no relatives alive who fall within the class of beneficiaries on intestacy, the estate can end up in the hands of the State Government.

The nature of co-ownership plays an essential part in whether property can be disposed of by your Will. When devising an effective estate plan, it is necessary to consider the appropriateness, or otherwise, of joint tenancy property. The most distinguishing feature of joint tenancy, compared to tenancy in common, is the impact on co-ownership when one of the interested parties dies. In a joint tenancy, on the death of a co-owner their entire interest in the property passes to the surviving owner/s pursuant to the right of survivorship (without reference to their Will). In a tenancy in common, the deceased owner’s interest is fixed and distinct, and upon death passes to the deceased owner’s estate to succeed to the beneficiary named in the Will.

A joint tenancy can be severed during the life of the co-owner to create an interest as tenant in common. Severance of a joint tenancy can be part of an effective estate plan in particular scenarios as it allows the individual to dispose of his or her interest in a property that would otherwise fall to the rules of survivorship (without reference to a Will).

A well-versed solicitor will be able to consider the particular circumstances of the individual and appropriately advise on options available that ensure the individual’s intentions are not defeated by the right of survivorship arising from joint tenancy or litigation against the estate, as the case may be.

Severing a joint tenancy may be an effective part of an estate planning strategy. For example, for a Will-maker in a blended family situation there is often an attempt to balance the moral duty to provide for spouse against a duty to provide for children of a previous relationship. A solution may be to sever the joint tenancy in the matrimonial home and provide a portable right of occupation for life in the half share of the property for the second spouse and then provide for the children of the first marriage as remainder beneficiaries (so they receive an interest, albeit delayed).  Depending on the circumstances, this may be an effective way to provide for a second spouse and children from a prior relationship.

Not severing a joint tenancy may also be an effective strategy in particular scenarios. If an interest in property falls to the surviving joint owner pursuant to the doctrine of survivorship, then the interest in the property will not fall into the estate, which would make it available to claims against the estate. In a situation where a claim against the estate is anticipated, leaving the interest out of the estate can be an effective strategy to mitigate against a family provision claim (in all states except New South Wales).

Only assets owned by an individual will fall into their estate and be dealt with under their Will. Assets that can be disposed of by Will are limited to the assets owned by a person at the time of death or assets paid to the deceased estate as a consequence of their death.  Any asset not owned by a person, such as superannuation or jointly held property, does not form part of an estate. It is often the case that a significant portion of an individual’s wealth is not actually owned by that individual and consequently, may not form part of their estate. These are what are commonly referred to as non-estate assets.

Some examples of non-estate assets are:

  • Superannuation death benefits;
  • Jointly held assets;
  • Assets owned by a company (if the individual owns share in a company, then those shares will form part of their estate); and
  • Assets owned by a trust.


Non-estate assets are treated differently and accordingly, need to be considered as part of an individual’s overall estate plan.

As your estate is comprised of everything you own; including superannuation contributions, life insurance policies, the family home, shares, investments, motor vehicles and other personal belongings, you can often have more wealth than you realise. No matter the size of your estate, it is important to have the documentation in place to determine how your assets are to be managed and distributed after you are gone.

Many DIY Will Kits and legal documents, such as Enduring Power of Attorney, are available online, however trying to make these documents without legal advice can cause more problems than they solve. When people try to create a DIY Will, they often make many errors, use ambiguous language and do not execute the document in a legally binding way. An incorrectly prepared Will can be disastrous and can result in significant costs that could have been avoided had the document been prepared properly.

A properly prepared Will should not only be correctly executed but should also consider asset protection and tax issues. Similar problems can arise with Enduring Powers of Attorney being prepared without the appropriate legal advice. Given the far-reaching effects of this document, it is important to appoint people you trust implicitly, as well as tailor the terms of the document to suit your specific circumstances.

The ‘tick and flick’ approach applied to forms downloaded from the internet can result in serious and often unintended consequences for you and your nominated attorney.

Simple! Contact us for a complimentary 30-minute estate planning review any time by calling 1800 621 071.

We will help you identify what strategies you can put in place to plan your estate effectively. We will then send you an easy to follow online questionnaire which will help us collect the information we need to begin your estate plan. Our friendly team will arrange a suitable time for you to meet with your estate planning Lawyer at an office location most convenient to you.