Practice area · Wills & estates
Wills, enduring powers of attorney and estate planning
Estate planning is about making clear arrangements for the people, property and decisions that matter.
We assist clients with wills, enduring powers of attorney, testamentary trust wills, estate planning, probate, letters of administration and estate administration.
Who we assist: individuals, couples, blended families, executors, attorneys, business owners and families dealing with estate administration.
For straightforward wills and enduring powers of attorney, fixed fees may be available. More complex estate planning may require tailored advice. Where tax, superannuation or financial planning issues arise, we may recommend that you obtain advice from your accountant, financial adviser or other specialist adviser.
Wills
Simple wills
A simple will may be appropriate where your estate planning needs are straightforward and you want to appoint executors, name beneficiaries and set out how your estate is to be distributed.
A simple will may address:
- who will act as executor
- who receives your estate
- who receives specific gifts
- what happens if a beneficiary does not survive you
- guardianship wishes for minor children, where relevant
- funeral or burial wishes, where appropriate
A simple will may not be suitable for every client. More detailed advice may be needed where there are blended families, vulnerable beneficiaries, business interests, trusts, companies, superannuation issues, overseas assets, significant tax considerations or a risk of dispute.
Powers of attorney
Enduring powers of attorney
An enduring power of attorney allows you to appoint one or more people to make certain decisions for you during your lifetime.
Depending on how the document is prepared, an attorney may be appointed for financial matters, personal matters, health matters or a combination of those matters.
An enduring power of attorney is not the same as a will. A will deals with your estate after death. An enduring power of attorney operates during your lifetime and can be particularly important if you lose capacity or need help managing affairs.
Issues to consider include:
- who should be appointed
- whether attorneys act jointly, severally or by majority
- when financial powers begin
- what powers should be given or limited
- whether conflict transaction clauses are needed
- whether attorneys are likely to work together
- whether safeguards or directions should be included
Choosing the right attorney is important. The role can involve significant responsibility and trust.
Trust wills
Testamentary trust wills
A testamentary trust is a trust created by a will. It may be useful where a client wants greater flexibility, asset protection or control over how estate assets are managed after death.
A testamentary trust will may be considered where:
- beneficiaries are minors
- beneficiaries may be vulnerable or financially inexperienced
- there are blended family issues
- a beneficiary has relationship, creditor or business risk
- tax flexibility may be relevant
- the estate includes substantial assets
- there is a desire to separate control and benefit
- ongoing management of assets may be needed
Testamentary trust wills are more complex than simple wills and should be tailored to the client’s circumstances.
Complex estates
Blended families and complex estates
Estate planning can be more complicated where there are children from previous relationships, second spouses, jointly owned property, superannuation, family trusts, companies or competing family expectations.
Common issues include:
- balancing provision for a spouse and children
- dealing with jointly owned property
- understanding what assets do and do not pass through the estate
- superannuation nominations
- control of trusts and companies
- appointor and trustee succession
- gifts to children or stepchildren
- risk of estate disputes
- capacity and undue influence concerns
A will alone may not deal with every asset or control issue. Estate planning may require consideration of related documents and structures.
Administration
Estate administration
After someone dies, the executor or administrator may need to identify assets, notify relevant institutions, pay debts, deal with tax, distribute assets and communicate with beneficiaries.
Estate administration may involve:
- locating the will
- confirming executors
- identifying estate assets and liabilities
- notifying banks, superannuation funds, insurers and other institutions
- obtaining date-of-death asset values
- dealing with property
- applying for probate or letters of administration where required
- collecting estate assets
- paying estate expenses and debts
- preparing distribution statements
- distributing the estate
- responding to beneficiary enquiries
Acting as executor can be time-consuming and may involve personal responsibility. Legal advice can help executors understand what needs to be done and in what order.
Probate
Probate and letters of administration
A grant of probate or letters of administration may be required before certain estate assets can be collected or transferred.
Probate is generally associated with proving the validity of a will and confirming the executor’s authority.
Letters of administration may be required where there is no valid will, no executor able or willing to act, or another administration issue.
Whether a grant is needed will depend on the assets, institutions involved and estate circumstances.
We assist with preparing and filing applications for probate and letters of administration and advising executors or administrators about the estate administration process.
Fixed fees
When fixed fees apply
Fixed fees may be available for standard wills and enduring powers of attorney where instructions are straightforward.
A standard fixed-fee matter may be appropriate where:
- the client has capacity to give clear instructions
- the estate structure is simple
- there are no substantial family disputes
- there are no complex trusts, companies or SMSF issues
- the intended gifts are straightforward
- there are no significant overseas asset issues
- no detailed estate planning advice is required beyond standard documents
Basic will — one person
A straightforward will for an individual, prepared and explained.
Basic wills — couple
Two basic wills with mirrored instructions, for spouses or de facto partners.
Enduring power of attorney — one person
One enduring power of attorney for an individual, prepared and explained.
Enduring powers of attorney — couple
Two enduring powers of attorney with mirrored instructions, for spouses or de facto partners ($250 + GST each).
Complex estate planning
Testamentary trusts, blended family arrangements, business succession and other tailored planning.
Fixed fees are subject to confirmation after your instructions are reviewed. If your circumstances call for more than a basic document, we will let you know before any work starts and provide a tailored quote. All fixed fees shown include GST.
Tailored advice
When tailored estate planning advice may be needed
Tailored advice may be needed where the client’s circumstances are more complex.
Examples include:
- blended families
- second or subsequent relationships
- children from different relationships
- family members who may contest the estate
- significant superannuation
- self-managed superannuation funds
- family trusts
- companies or business interests
- farms or substantial property holdings
- vulnerable beneficiaries
- beneficiaries overseas
- estranged family members
- asset protection concerns
- tax or control issues
- concerns about capacity or undue influence
In those matters, a standard will may not be enough. The estate plan may need to consider related structures, nominations, control documents and practical family risks.
Your appointment
What to bring to a wills appointment
Please consider bringing or preparing:
- your full legal name and contact details
- details of your spouse or partner, if any
- details of children and intended beneficiaries
- details of executors you are considering
- details of attorneys you are considering
- a broad list of assets and liabilities
- details of superannuation funds
- details of trusts, companies or business interests
- any existing wills or powers of attorney
- details of any overseas assets
- any specific gifts or wishes
- any family circumstances that may affect the estate plan
FAQ
Frequently asked questions
Do I need both a will and an enduring power of attorney?
They do different things. A will deals with your estate after death. An enduring power of attorney allows appointed people to make certain decisions during your lifetime. Many clients prepare both.
Can I use a simple will?
A simple will may be suitable where your circumstances and wishes are straightforward. If there are trusts, companies, blended family issues, superannuation complexities or dispute risks, more tailored advice may be needed.
What is an executor?
An executor is the person appointed under a will to administer the estate. The role may involve collecting assets, paying debts, dealing with tax and distributing the estate.
What is probate?
Probate is a court grant that confirms the validity of a will and the executor’s authority to administer the estate. Whether it is required depends on the estate assets and circumstances.
What happens if someone dies without a will?
If a person dies without a valid will, their estate may be administered under intestacy rules. Letters of administration may be required before the estate can be dealt with.
Can I update an existing will?
Yes. If your circumstances have changed, your will and enduring power of attorney should be reviewed. Common reasons include marriage, separation, divorce, children, property changes, business changes, death of an executor or beneficiary, and changes to superannuation or family trusts.
Take the next step
Put clear estate documents in place
Whether you need a simple will, an enduring power of attorney, a testamentary trust will or help administering an estate, our Robina team can assist.