Wills and estates lawyers

A will is a vital document that designates an executor and specifies how you wish your assets to be distributed upon your passing. An estate plan, however, is a more comprehensive strategy, encompassing not only the provisions of a will but also addressing how your affairs should be managed during your lifetime in the event of incapacitation and ultimately, upon your death.

An estate plan anticipates all potential scenarios and incorporates elements such as an enduring power of attorney or an enduring guardian to manage your assets and personal matters if you are unable to make decisions yourself.

It also includes arrangements beyond a will, such as beneficiary nominations for superannuation and life insurance, deeds to transfer control of family trusts, business succession agreements, and company powers of attorney.

In essence, while a will governs the distribution of your assets after death, an estate plan provides a comprehensive framework, ensuring your personal, financial, and business interests are managed according to your wishes in all circumstances.

If you pass away without a valid will, you are considered to have died “intestate.” In this case, NSW intestacy laws dictate how your assets are divided, typically among close family members.

Without a will, your estate may not be distributed as you would have wished, and the process can become more complex and costly for your loved ones.

Yes, you can change your will as often as you wish. However, it’s essential to make updates through legally valid means, such as by drafting a new will or adding a legally recognised amendment called a codicil.

Changes may be necessary after major life events, such as marriage, divorce, the birth of children, or significant changes in assets.

A discretionary testamentary trust is designed to hold assets not in an individual’s name but within a trust, ensuring these assets serve the best interests of designated beneficiaries over time.

This structure goes beyond mere asset holding—it protects wealth and uses strategic tax planning to maximise what’s available to beneficiaries. Additionally, it enables assets to be transferred smoothly across generations without needing to go through probate.

The “trustee” plays a key role here, with the discretion to decide how and when to distribute the trust’s income or capital. Trustees can choose whether funds come from earnings or principal, select which beneficiaries will receive them, and determine the timing, allowing flexibility to accommodate the unique needs of each beneficiary.

This structure provides a robust, flexible approach for preserving and passing down family wealth through generations.

While preparing a will yourself may seem straightforward and cost-effective, the risks of a DIY approach can be significant:

• Risk of invalidity: Incorrect signing, missing or ineligible witnesses, or other formal errors can invalidate a will.
• Executor oversights: Failing to name an executor or a backup could leave your estate without clear direction, causing delays and complications.
• Unclear capacity: Without legal support, confirming the will maker’s mental capacity can be difficult, opening the door to potential disputes.
• Overlooking joint assets: DIY wills often miss the impact of jointly-held assets, complicating the estate distribution process.
• Confusing or missing instructions: Vague, contradictory, or missing directions can lead to misunderstandings or family disagreements over who inherits.
• Tax and financial implications: Key financial considerations, like capital gains tax, stamp duty, and residency-related tax issues, are frequently overlooked, affecting beneficiaries.

The biggest drawback of a DIY will is the lack of tailored, up-to-date guidance on essential matters. A skilled wills and estates solicitor will explore your unique situation, review your assets, identify potential challenges, and advise on strategies to reduce future disputes, ensuring your wishes are clear and your loved ones are protected.

Creating an estate plan isn’t just about putting wishes on paper; it’s about ensuring those wishes are truly protected.

A wills and estates lawyer brings the professional experience to foresee issues that might never cross your mind, helping you avoid pitfalls that could complicate matters for your family in the future.

These professionals ask the right questions—questions that prompt you to consider various “what if” scenarios that could affect your estate if left unaddressed. By planning for the unexpected, a wills and estates lawyer ensures your will, enduring power of attorney, and other documents are prepared to handle any complexities.

At the end of the day, a personalised estate plan crafted with a lawyer’s guidance is a safeguard. Sadly, we often see the consequences when people attempt DIY estate planning, only to miss critical details.

A wills and estates lawyer offers peace of mind, knowing your estate plan is thorough and designed to protect your loved ones fully.

An executor is the individual you appoint in your will to handle the administration of your estate after you pass away. Their duties can range from applying for a grant of probate, if necessary, to managing your assets and ensuring they’re distributed according to your wishes. This role may involve coordinating with lawyers, real estate agents, and beneficiaries to carry out your instructions.

While you have the freedom to choose anyone, many people select a spouse or adult children, as they’re often beneficiaries and have a strong interest in seeing the estate managed efficiently. However, it’s best to avoid appointing more than two or three executors, as having too many people involved can make the process complex and impractical.

It’s also wise to name a substitute executor, providing peace of mind that if your primary choice is unable to fulfil the role, someone else you trust can step in to ensure your wishes are respected.

H3: 1. What are my responsibilities as the executor of a will?
As an executor, you are responsible for managing the deceased’s estate according to their will. This includes applying for a grant of probate if needed, settling any outstanding debts, distributing assets to beneficiaries, and ensuring the estate is handled legally and fairly.

Executors may also need to communicate with lawyers, accountants, and other professionals to complete these duties.

As an executor, you are responsible for managing the deceased’s estate according to their will. This includes applying for a grant of probate if needed, settling any outstanding debts, distributing assets to beneficiaries, and ensuring the estate is handled legally and fairly.

Executors may also need to communicate with lawyers, accountants, and other professionals to complete these duties.

If you are a beneficiary, the executor will inform you and provide a copy of the will.

In NSW, certain people, including beneficiaries and immediate family members, have a legal right to request a copy of the will to verify their entitlement. This can be done by contacting the executor or the law firm holding the will.

After probate is granted, the executor must gather all assets, pay any debts or liabilities, and distribute the remaining estate according to the terms of the will. This can involve transferring property, distributing funds, or managing specific bequests.

The executor’s role is to ensure assets are distributed fairly and in line with the deceased’s wishes, though the process can take several months depending on the estate’s complexity.

Yes, if you believe the will does not reflect the deceased’s intentions or if you feel inadequately provided for, you may be able to contest the will.

In NSW, eligible people, such as family members or dependents, can file a family provision claim within 12 months of the deceased’s passing to seek a fairer share of the estate. We strongly recommend consulting a wills and estates lawyer if you plan to take such action.

If an estate’s debts exceed its assets, it is considered insolvent. In this case, the executor must prioritise paying off debts according to legal requirements before any distributions to beneficiaries. Some specific bequests may be reduced or omitted if there are not enough remaining assets to fulfil them.

Executors are advised to work closely with wills and estates lawyers in managing insolvent estates to ensure compliance with NSW laws.

If you believe you may be a beneficiary or have an interest in an estate, certain people are legally entitled to request a copy of the will in NSW. These include:

• Named individuals in the will, whether they are beneficiaries or not
• Beneficiaries listed in an earlier version of the will
• The surviving spouse, de facto partner, or children of the deceased
• Parents or guardians of the deceased
• Anyone who would inherit if the person had passed without a will (under intestacy rules)
• Parents or guardians of minors named in the will or who would inherit under intestacy
• Individuals with potential claims against the estate, including creditors
• Anyone managing the estate under the NSW Trustee and Guardian Act 2009 before the person’s death
• A person holding an enduring power of attorney from the deceased
• Any person identified in NSW succession regulations as having a valid interest

If you meet one of these criteria, you can request a copy by contacting the executor or the person responsible for holding the will, often a law firm.

Acting as an executor can be a complex and time-consuming role, often involving legal, financial, and administrative duties. A wills and estates lawyer can offer essential guidance, from navigating probate and fulfilling legal obligations to managing estate assets and addressing debts and taxes.

With professional legal support, you can ensure each step is completed accurately and in compliance with NSW law, minimising the risk of errors, disputes, or potential liability.

Many executors find that working with a lawyer provides reassurance and helps simplify the estate administration process, making it easier to carry out their responsibilities effectively.