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.

Most people hold life insurance policies (death cover) and there is normally a death benefit component attached to your superannuation policy, in addition to the amount of superannuation contributions you hold. We can assist you 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.

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.

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.