Wills, Estate Planning and Succession Planning

A Will sets out who should receive your estate and who you appoint as executor to administer it. It can also record your wishes about guardianship for children under 18, although these wishes are subject to the applicable law and any Court decision.

The right approach depends on your family, assets and the needs of your beneficiaries. We can advise on arrangements for blended families, minor children, beneficiaries needing additional support and other circumstances requiring careful planning.

Our services include:

• comprehensive Wills;
• testamentary trust Wills;
• protective trusts, special disability trusts and life interest structures;
• Wills incorporating superannuation proceeds trusts;
• contractual Will agreements, including mutual Wills; and
• amendments to existing Wills, including codicils where appropriate.

We also advise on the risk of claims against an estate and options for addressing that risk. No estate plan can guarantee that a claim will not be made.

Victoria Legal Aid explains the requirements for making a valid Will.

If you die without a valid Will, intestacy laws determine who receives your estate. That distribution may differ from what you would have chosen.

Someone may also need to apply for Letters of Administration to manage the estate. Preparing a Will allows you to express your wishes and appoint an executor, providing clearer direction for those dealing with your affairs.

A review may be appropriate when your circumstances change, including:

• marriage, separation or divorce;
• the birth of a child or grandchild;
• changes to your assets, business or trust arrangements;
• the death or incapacity of an executor or beneficiary; or
• changes to your health or the needs of someone you wish to provide for.

We can assess whether your existing documents still reflect your wishes and advise on any changes needed.

A testamentary trust is a trust established under a Will that takes effect after the Will maker’s death. It provides a structure for managing an inheritance rather than distributing it outright.

Depending on how it is structured and the beneficiary’s circumstances, a testamentary trust may offer flexibility, asset protection and tax benefits. These outcomes are not automatic, and the suitability of the trust needs careful consideration.

A testamentary trust may be worth considering where:

• beneficiaries are children;
• a family has significant or complex assets;
• there are blended family considerations;
• a beneficiary has a disability or needs assistance managing money; or
• there are concerns about financial vulnerability, addiction or relationship breakdown.

We can explain the benefits, limitations and ongoing responsibilities, and advise whether a trust is appropriate for your family.

A Will deals with your estate after death. Separate documents are needed to appoint people to make decisions during your lifetime.

Thinking about a time when you may need assistance can be difficult. Planning ahead allows you to choose people you trust and discuss your wishes while you have capacity to do so.

If concerns arise about an existing appointment or someone’s ability to manage their affairs, we can also advise on VCAT guardianship and administration matters.

In Victoria, an enduring power of attorney allows you to appoint someone to make financial decisions, personal decisions, or both.

These may include paying bills, managing property and making decisions about living arrangements. You can specify the scope of the authority and when it begins.

The Office of the Public Advocate provides guidance on making an enduring power of attorney.

We can help you consider who to appoint, how appointments should operate and what safeguards or limitations may be appropriate.

An appointment of a medical treatment decision maker allows you to choose who can make medical treatment decisions if you do not have capacity to make the particular decision yourself. This is separate from an enduring power of attorney for financial and personal matters.

An advance care directive can record your treatment instructions, values and preferences to guide future medical care.

We can advise on these documents and help you consider how to communicate your wishes to the people you appoint. We also assist with general and supportive powers of attorney where appropriate.

Succession planning addresses what happens to the ownership and control of businesses, trusts and other structures if you die or lose capacity.

A Will alone may not deal with every asset or control role. Assets held by a company or trust require consideration of the relevant structure and governing documents.

We can review existing arrangements and assist with:

• discretionary and unit trust deeds;
• succession to appointor, guardian or principal roles within trusts;
• trustee changes;
• shareholder, unitholder and buy-sell agreements; and
• self-managed superannuation fund deeds and succession arrangements.

Where appropriate, we work with your accountant or financial adviser to coordinate your estate plan with your business, taxation and financial arrangements.

Assets held overseas may be subject to different succession laws and document requirements. Your Australian estate plan needs to be considered alongside any arrangements in the country where those assets are located.

We can advise on coordinating your Australian Will with overseas arrangements and identify where advice from a lawyer in another jurisdiction may be needed.

Moving into aged care or a retirement village can involve significant personal and financial decisions, often during a stressful period for the family.

These agreements differ from ordinary residential property transactions. We can review the documents and explain fees, ongoing obligations, exit arrangements and other terms relevant to your circumstances.

Our aim is to help you understand the commitment before signing and identify issues that require further consideration.

Some circumstances require advice beyond a standard Will or power of attorney. We also assist with estate planning questions involving posthumous reproduction and voluntary assisted dying, where the legal issues and available options require individual assessment.

We can discuss your concerns sensitively and explain how they relate to your broader planning.