Wills and Succession Planning
Having an up-to-date will and succession plan is one of the most important financial and legal tasks you can undertake, particularly if you have a family or complex financial situation. In the event of death, you need legally effective wills and succession planning if you wish to have a say over the distribution of your assets, your personal estate, the running of your business and, importantly, your children’s legal guardianship.
If you don’t leave a current valid Will, then your estate will be divided according to the law, rather than your wishes. Give your family peace of mind should the worst happen and complete your wills and succession planning immediately.
Your broader succession plan is not only about a Will. It should also include:
- power of attorney documents to deal with incapacity.
- superannuation death benefit nominations to deal with superannuation death benefits.
- life insurance nominations to deal with where life insurance passes.
- succession of control of any discretionary or family trusts (trustees, appointors and guardians).
- succession of any broader business structures.
Our specialist lawyers for wills and estates are highly experienced in all aspects of wills, estates, trusts and succession planning.
Estate and succession planning do not have to be complicated or time-consuming. Our team will answer your questions and help you identify and plan for any potential issues. We will provide an easy-to-understand, step-by-step process to get your estate and succession plan in shape and secure your family’s financial future long after you’re gone.
Preparing or updating your will and succession plan will ensure that your estate and other entities (such as family trusts or businesses) are managed smoothly and in accordance with your instructions by the appointed executor of the will.
Our knowledgeable lawyers can guide you through every step of the process of creating a Will. We listen carefully to understand your unique family and financial situation.
We work closely with you (and your financial or business advisers where this assists) to understand what you would like to achieve with your estate planning and provide clear options and advice.
Due to the emotional nature of the topic matter, we handle the process with sensitivity and understanding to achieve the best estate planning outcomes and peace of mind for your family.
We have extensive experience and expertise in advising on all aspects of estate planning including:
- establishing testamentary trusts
- trust structuring
- asset protection
- superannuation
- probate
- estate, Will and trust disputes.
One issue we often see is where the succession planning has not been kept up to date and circumstances have changed. This can cause many issues, including assets not passing as intended, uncertainty and disputes about your Will.
You also need to update your Will details when your life situation changes in any way, including a marriage ending or commencing, new children or grandchildren needing to be added, or if there are any other major changes in your financial outlook such as an inheritance or a business sale.
Before you begin your succession planning, you need to think about what and who to include in your plan. If you do not prepare and end up leaving something essential out of your plan, your intentions may not be achieved. For example, assets can pass to persons you did not intend to benefit, and costly and divisive family disputes are more likely to occur.
In preparation for creating a succession plan, here is a basic checklist of things to think about:
- Executor: Who do you want to be the executor of your Will?
- Gifts: Do you want to give any gifts to individuals (friends or family) or charities?
- Residuary estate: After all the expenses for your funeral are paid off and any debts are dealt with, who would you like to leave the remainder of your estate to (family, spouse, children)?
- Testamentary trusts: Do you want to set up a testamentary trust for when you die to protect your assets from creditors or family?
- Default position: In case you and your immediate family all die, who will you give your assets to?
- Guardians: Who will your children live with after your death? What if you and your spouse both pass? Who will be the guardian?
- Letter of wishes: You can set out your wishes regarding any family trusts, business interests, testamentary trusts established under your Will, guardians of your children, division of your personal assets, funeral arrangements and other personal matters that are important to you, but the letter is not a legal binding document.
- Powers of attorney: Who do you want to be your power of attorney? Powers of attorney and appointments of enduring guardians (depending on your State/Territory) are documents that allow you to appoint people to make financial and legal decisions, and medical treatment decisions, if you are unable to make those decisions.
- Discretionary or family trusts: Do you have a discretionary or family trust? If yes, the assets of the trust will remain in the trust after your death, and you need to consider who controls the trust. The key control roles are the trustee (who makes day to day decisions about the trust, including distributing income), the appointor (who can change the trustee) and for some trusts, the guardian (whose consent is required before the trustee can make certain decisions).
View our comprehensive checklist to prepare you for your wills and succession planning meeting.
What to bring
To prepare for your succession planning meeting, please email us the following documents (where applicable to you) or, if this is not possible, please bring copies to the meeting:
- structure diagram
- self managed super fund deed
- copies of superannuation death benefit nominations
- family trust deeds
- company constitutions
- most recent financial statements for trusts/companies (including loan accounts) and self managed superannuation funds
- life and other insurance policy statements
- current Wills, powers of attorney and appointments of enduring guardians
- shareholder or buy sell or other business succession agreements.
What happens next?
- We meet to discuss your wishes and options.
- We send you initial diagrams setting out your plan.
- You review the plan, confirm any information, and return our engagement letter.
- We provide you with a letter of advice and draft documents to review.
- You confirm any final instructions.
- We meet with you to review and sign your documents.
- We provide you with copies of your documents.
Our wills and probate lawyers understand that losing a loved one can be a difficult and emotional time, and we are committed to providing compassionate and supportive legal services to help you navigate through probate and estate administration with ease.
Probate and estate administration are important legal processes that help ensure the deceased’s assets are distributed according to their wishes. These processes can be complex and time-consuming, and it is important to have the guidance of an experienced legal team to navigate them successfully.
Our team can assist you with all aspects of probate and estate administration, whether simple or complex, including obtaining probate and letters of administration, identifying and valuing assets, paying debts and taxes, distributing assets to beneficiaries, and resolving any disputes or complexities that may arise.
Our expertise includes:
- obtaining probate or letters of administration of Wills or other testamentary documents that don’t comply with prescribed laws.
- advising when Wills have been lost or originals can’t be located.
- obtaining letters of administration when there is no valid Will and advising on intestacy laws.
- making urgent applications for interim grants.
- administering an estate when the contents of the Will are unclear and require interpretation.
- providing advice on informal Wills, construction and rectification issues.
- dealing with difficult beneficiaries.
- dealing with foreign and digital assets.
- advising on executor’s commission.
- advising on tax and stamp duty implications from the sale and distribution of estate assets.
- defending estates from potential legal proceedings.
- advising executors of their duties and obligations.
- advising beneficiaries of their rights.
- Preparation of comprehensive estate plans, including Wills with testamentary trusts, incapacity documents (powers of attorney), superannuation death benefit nominations, trust control documents and letters of wishes.
- Tailored testamentary trust Wills to cater for specific circumstances, including protecting vulnerable beneficiaries, limiting potential beneficiaries, control and decision making.
- Advice regarding superannuation and SMSFs, including withdrawal strategies, compliance considerations, incapacity of directors / trustees and members, and control after death.
- Complex estate planning, including testamentary trusts with bespoke provisions to protect wealth for vulnerable beneficiaries including capital protection, control and decision making.
- Assisting clients with the restructuring of assets to minimise assets exposed to a potential Will dispute following death.
- International succession planning, including advice regarding Australian and overseas assets, taxation consideration and jurisdiction considerations.
- Assisting family groups with transitions of family wealth between generations, including helping with education and understanding of structures and concepts for younger generations.
- Preparing family agreements across multiple family groups to assist with transition of control, decision making, incapacity, business control transition, relationship breakdowns.
- Advising family groups regarding establishing charitable and philanthropic structures, assisting with for purpose and giving programs and ongoing administration and compliance regarding not-for-profit structures.
- Assisting with all estates and estate administration, including grants of probate and letters of administration, informal Wills, complex estate administration.
- Assisting with Will disputes, including acting for executors defending a claim, executor commission disputes, executor and beneficiary disputes and acting for people bringing a claim.
