Estate Planning & Estate Administration
Whether you are planning ahead or dealing with the estate of someone who has died, it can help to know what needs to happen next.
Our Wills & Estates team can help you put the right arrangements in place for the future or guide you through the practical and legal steps involved in administering an estate.
A few questions you may have
What happens if I have estranged family members?
If a member of your immediate family has been estranged from you for some time, careful consideration needs to be given when creating a Will. If a family member who has been a dependant of yours has been left out of your Will, that person may have a right to challenge your Will in Court in certain circumstances. A carefully prepared Will might just save the people you leave behind a significant amount of grief and legal expense.
In cases where there are no surviving spouses or children, the deceased’s parents, along with other relatives, may be entitled to inherit from the estate according to intestacy rules.
How will my young children be taken care of?
A Will can specify who the guardian of your children under 18 will be in the event of your death. Nominating a guardian in your Will can reduce the conflict between family members about who will care for your children after you die. If a dispute does arise, it is the family law courts who determine where children reside and who makes decisions about them. In the event of a dispute, the nomination of a guardian in your Will shows what your intention was.
The law provides that your children cannot take control of their share of your estate until they are 18 years of age. You can specify in your Will who will manage the benefits being left to your children until they reach the age you nominate for them to receive the benefit.
Your Will can stipulate how old you want your children to be when they receive their share of your estate. If no age is specified, children are entitled to receive their share at 18 years old. Many parents want their children to be older before they receive some or all of their share. Commonly the ages of 21 or 25 are specified. Knowledge of the law is important to ensure that your children do not receive what you have left for them early if you specify an age older than 18 years.
Our Wills and Estate Planning Lawyers can talk you through the key issues that emerge when selecting guardians and deciding the age your children will take control of what you leave for them, ensuring you can make an informed decision.
What if my child or a beneficiary has a disability?
If you have a beneficiary who has a severe disability, one of the options you should consider is whether a Special Disability Trust or a Protective Trust should be utilised when making your Will.
A Special Disability Trust allows you to provide for your child or beneficiary who has a disability in a way that does not impact their entitlement to receive a government disability pension (subject to the value of the trust, which is revised annually). A Special Disability Trust is used to provide particular benefits to the beneficiary, such as accommodation and health care. Discretionary expenditure from the trust needs to be compliant with the legislative requirements.
A Protective Trust allows you to provide financial protection for your child or beneficiary (the vulnerable beneficiary) by giving power over the income and capital of the trust to a Trustee who uses it to benefit your beneficiary for the purposes specified in your Will. A Protective Trust is not subject to the constraints of a Special Disability Trust, and so can be used to provide for broader purposes than a Special Disability Trust. Those broader purposes can include providing for the beneficiary‘s recreation, holidays, entertainment and many other things. A Protective Trust is not suitable when a priority is to preserve the beneficiary‘s entitlement to a government pension.
Another option is to use a Testamentary Trust.
How can I protect the benefit being left to a child or a beneficiary from estate disputes?
If you have a beneficiary who has an addiction such as to alcohol, drugs, or gambling, how they receive any gift being left to them under your Will requires careful planning. For example, it would not be desirable for an alcoholic to receive a significant amount of money from a deceased estate as that could have dire consequences on their health.
A Protective Trust allows you to provide financial protection for your child or beneficiary (the vulnerable beneficiary) by giving power over the income and capital of the trust to a Trustee who uses it to benefit your beneficiary for the purposes specified in your Will, such as recreation, holidays, entertainment and many other things. A Protective Trust is not suitable when a priority is to preserve the beneficiary‘s entitlement to a government pension.
Using a Protective Trust prevents your beneficiary from receiving the benefit you are providing for them in one lump sum upon your death.
Another option is to use a Testamentary Trust.
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