Wills & Estate Planning
Make sure your beneficiaries are protected with a Will and other Estate Planning documents that make sure your intentions will be carried out. Our highly experienced lawyers can ensure that your wishes are put into effect.
It is important to plan for your family’s financial security after you are gone. With a Will in place, you will ensure that your affairs are properly managed after your death. Your Will is your written expression of your intentions, ensuring that your tangible and intangible assets will be allocated appropriately among beneficiaries. In other words, you can enjoy peace of mind knowing your Estate will be distributed as you desire.
If your Estate is complex or if you have beneficiaries who may have special needs, you may wish to consider a Will that establishes a Testamentary Trust. The Trust can allow a high level of sophistication in a way that both capital and income are applied for the benefit of your loved ones, who due to their personal circumstances may not be able to effectively manage the benefit themselves.
Testamentary Trusts may also be an incredibly valuable planning instrument that can protect your Estate from future family law, insolvency, business or financial difficulties that your children and grandchildren may face in the future. Tax benefits are also available on distribution to beneficiaries including minors.
Another important aspect of an Estate Plan is the manner in which you deal with superannuation. Self managed Funds can be regulated by a complementary Death Benefit Agreement directing the Trustee to pay benefits to a spouse or legal personal representative or other dependants subject always to circumstances, and any balance cap from time to time. Similarly, Trust Deeds for publicly administered funds provide for non binding and binding nominations which may require novation after three years.
Too many Australian adults do not have a valid Will prepared. Ensure your wishes are honoured through Will and Estate Planning with Rankin Ellison Lawyers.
At Rankin Ellison, we have extensive experience in preparing Wills and Trusts, however complex your personal circumstances or asset base may be.
Our dedicated lawyers will take the time to understand your requirements and advise you of any potential issues, preparing your Will and Testamentary Trust in accordance with your intentions. We will also provide free and secure storage for your Will for as long as you require.
If you do not have a Will there are statutory provisions as to how your Estate will be distributed, which may not accord with your wishes.
Making a Will ensures that your wishes as to how, and to whom, your Estate is to be distributed are clear. It will also minimise the stress, expense and delay experienced by your family when administering your estate.
Anyone over the age of 18 can make a Will, provided they are able to understand exactly what they are doing. This is referred to as testamentary capacity. If you make a Will, you will be referred to as its Testator.
Ordinarily, to be considered valid and enforceable, your Will must be in writing and signed by you and two adult witnesses who are present at the same time. The Court has powers to recognise that a document constitutes a Will when the formal requirements have not been met in some circumstances.
If you are concerned about the validity of your Will or need support with Estate administration, get in touch with the Will lawyers at Rankin Ellison.
Your Executor is responsible for administering your Estate. The first step is to identify all of your assets and liabilities. Your Executor will then commence administration of the Estate meaning that they will pay out your debts and distribute the balance to the beneficiaries set out in your Will. Depending upon the size of your Estate, your Executor may have to make a formal application to the Supreme Court of NSW to obtain a Grant of Probate before commencing administration. In smaller Estates this may not be necessary.
If there are children under the age of 18 who are beneficiaries of the Estate, your Executor will be required to hold their entitlements on trust until those beneficiaries are old enough to take their benefit.
If there is a dispute about your Estate, your Executor will have to negotiate with parties to try and resolve the dispute, and in some cases act as a party in proceedings in Court.
Although you are entitled to leave your assets to whoever you want, your Will may be contested in certain circumstances.
People who are able to contest your Will under the Succession Act 2006 include your former spouse, de facto partner, child and any other dependent. However, this individual must convince the Court that you failed to make sufficient provisions for them in life.
At Rankin Ellison, we can advise on how to structure your Will to address these potential challenges.
A Testamentary Trust is a Trust that is created by your Will. It only commences on your death. This is different to a Discretionary or Unit Trust (sometimes referred to as a Living Trust) that is created during a person’s lifetime.
A Testamentary Trust established in your Will can provide the following advantages for your beneficiaries:
- Asset protection in family breakdowns
- Income splitting
- Protection for vulnerable beneficiaries
- Tax advantages, particular in the distribution of income to minors
The planning for a Testamentary Trust occurs when your Will is prepared and signed. However, the Trust itself is not created until you die and your Will takes effect.
You can change your Will at any time prior to your death provided you have testamentary capacity. If you have made a Will that will create a Testamentary Trust, you can revoke it by making a new Will. The Trust becomes irrevocable on your death. However, a Court could make Orders to wind up a Trust after your death.
A Death Benefit Agreement will ensure that the balance of a member account held in a self-managed superannuation fund by the Testator can remain in the fund and be consolidated with the member account of a surviving spouse. By leaving the account balance in the fund rather than having it automatically paid out, there can be tax advantages and other benefits for the surviving spouse.
Contact us onor 02 8297 5900.