SCB LEGAL
Our team of lawyers assist clients with all matters relating to Wills and Estate Planning. This includes everything from straightforward or simple Wills through to more complex estate planning and succession planning, including family trusts and Will disputes.
Been overlooked in a Will? Go to this section here.
Facing an Estate Dispute? Go to this page here.
Our aim is to ensure effective estate planning, so that your estate passes to those you wish to benefit from it. This diligent planning helps minimise estate disputes from occurring. Having a legal Will ensures that your family will be properly cared for when you pass.
We have the experience and dedication to effectively manage all matters including:
As you may well know, a Will is an important legal document which is used to determine how your property will be dispensed upon your death. Any debts you owe will need to be paid using your assets before your estate can be divided amongst the beneficiaries.
Having a legal Will ensures that your family will be properly cared for when you pass. What many people don’t realise however is how common it is in Australia for Wills to be found invalid. Unless a Will is drafted correctly, it can be challenged which creates additional stress for those you leave behind.
Arrange a time to meet one of our estate lawyers to make that happen.
All people aged 18 and over need a Will, even if there are no perceived assets or wealth to pass on. Individuals who have any superannuation at all, even if they have only held a part-time job, will have money in that fund. Depending on the cause of death, there may well be insurance or funds attached to that super fund. This cannot be taken into account in a Will. So, ensuring you have nominated beneficiaries with your super fund is important. Depending on the super fund, if you have not nominated beneficiaries, any super entitlements or funds may be paid into the Estate.
When drafting your Will, you appoint one or more Executors. An Executor is the person or people you nominate to administer your estate upon your death. This person should be someone you trust as they will become solely responsible for ensuring the terms of your Will are fulfilled when you die.
If you have children, and the other parent is deceased and you are not in a relationship, you may appoint a guardian in your Will. If guardianship of your children is contested, the Court will consider your wishes as set out in your Will. You can also appoint a Trustee to hold the beneficiaries entitlement on Trust until they attain a certain age, such as 18, 21, 25 etc. This can also be set up so there can be provision for their costs of living and education (or whatever is detailed), to be paid for in the meantime.
It is also an important part of estate planning to ensure you have nominated an Enduring Power of Attorney and Enduring Guardian.
Ensuring your Will is valid is the best way to ensure your estate – all of your assets, property and possessions – are protected and this is the only way to ensure your estate will be able to be provided to the people you intended it for.
Many people are surprised and saddened to learn too late that it is quite common for Wills in Australia to be found invalid for one reason or another.
If a Court considers a Will to be invalid, the estate will be dispersed as if no will existed. Dying without a valid Will is the same as dying without a Will at all and this often causes significant and unnecessary financial and emotional hardship on your loved ones during their time of bereavement.
These are known as the Rules of Intestacy. They can apply if your Will:
If you die without a valid Will, this is known as dying ‘intestate’. Your assets will be dispersed based upon strict legal rules known as intestacy and are sometimes not in accordance with your wishes. In this scenario, you will have no say as to how your property is divided. In most cases, all your property will be transferred to your eligible relatives, usually your partner (or former partner) or children, in accordance with predetermined percentages.
The rules applied by the Court will not allow the leaving of gifts to friends or charitable organisations. Your relatives will generally receive all your property however, the procedures for administering your estate are time consuming, complex and costly. If you have no living family members, the government is entitled to take the entire estate of the deceased.
Wills are sometimes deemed as partly valid and partly invalid. Therefore, it is advisable that your Wills includes what’s known as a ‘residuary clause’ to cover any assets that are not specifically provided for in your Will, known as your ‘residuary estate’. Careful drafting ensures those assets will be distributed according to your wishes and not result in being administered according to the Rules of Intestacy.
If, after reasonable enquiries, it is determined that you died without a Will or you died with an invalid Will, your eligible relatives will need to apply to the Supreme Court for a grant of Letters of Administration, so that a suitable administrator can be appointed. Locating relatives based upon evidence of your genealogy can be an expensive and time-consuming task so it is important to ensure there is no chance that any Will you have could be considered invalid in any way.
The issue of invalid Will is a genuine and significant one in Australia. Unfortunately, without a review, no-one can be alert to this potentially catastrophic issue until the Executor applies for a Grant of Probate – the process that an Executor applies for before being allowed to administer an estate – and it is discovered that probate has been denied or refused.
We offer Will reviews to allow you peace of mind and ensure your estate is distributed in line with your wishes.
Much consideration must go into estate planning where you have repartnered or remarried and you have children from previous relationships. Depending on the state or territory of Australia you live in, there are different rules as to who will inherit your estate in the event that any Will you have in place is considered invalid.
Wills can be contested which is why it is important to have your Will carefully drawn up and estate planning considerations such as the terms of your superannuation fund be taken into account. This is done by ensuring the nominated beneficiaries of your super fund are up to date. This is particularly the case if you are part of a Government superannuation scheme, you have re-partnered or if you have had a falling out with your beneficiary.
You do not want to have issues with your children not receiving what you have expressly stated in a Will. The only way to be confident that will eventuate is to seek advice and have any current Will reviewed for potential issues, or have a Will drawn up to reflect your wishes and one that will be able to be upheld upon your death.
To avoid stress and financial issues for those left behind after your death, arrange a time to meet with our estate lawyers and ensure your wishes can be met.
You will need to carefully consider who you will nominate as the Executor (or Executors) of your Estate. The person or people you nominate as Executors have a very important role and will need to take on significant responsibilities that include:
It is crucial that you appoint someone that you trust to fulfil this very important role. If at any point you have a falling out with this person, you should immediately update you Will.
Due to the gravity of the role, many people elect to appoint their solicitor as Executor to remove the pressure from family and also because they trust their knowledge and expertise in the administration of Estates.
Yes, your Will may be altered by you at any time. Since your Will expresses your wishes only at a certain point in time, it is highly recommended to revise your Will every few years. In this way, you ensure that it still reflects your current intentions.
If you have a major life change, such as a marriage or divorce, or one of your loved ones dies, or you have children or grandchildren, it is in your best interests to revise your Will accordingly.
If you get divorced, it won’t revoke your entire Will. However, any clause provided for in your Will regarding your property going to your former spouse will be automatically revoked when the Divorce Order takes effect. If your former spouse is appointed as your Executor, your divorce will also cancel their appointment.
It is important to note that if you are separated and not legally divorced, these rules will not apply. They may also not apply if the Court is satisfied that you did not intend for your divorce to remove your former spouse as a beneficiary. If you are considering separating from your spouse or getting divorced, it is recommended that you revise your Will.
In order to effectively update your Will, or provide explanations as to why you have done certain things in your Will, you must execute a formal authorised amendment which is known as a ‘Codicil’. A codicil is a separate document that must be signed and witnessed by two other people just like your original Will. Alternatively, you may have a new Will drawn up to keep everything in the one document.
Relatives, and in some circumstances friends, who believe they have not been sufficiently provided for in your Will, may be entitled to apply to contest it. They must prove to the Court that you failed to make adequate provision for them in your Will including expenses such as their maintenance, education and the like. These are known as applications for a Family Provision Claim. This can include people outside of your family if it can be proven that you have provided financial support to them in an ongoing capacity.
To avoid your Will being challenged it is important to allow for any existing provisions to be continued or alternatively, provide a detailed explanation about why you have not made provision for them in your Will. In the event there is someone you expressly wish to be left out of your Will, seek legal advice from our team to determine the avenues that may be available to you.
Talk to our team about how your wishes can be met.
It is very important that you keep your original Will in a safe and secure place at all times. It is recommended that you select a place that your appointed Executor knows to find your most up to date Will, and have access to when upon your passing.
A copy of your Will should be created and marked highlighting where your original Will is located. It is common practice for your lawyer to keep the original Will on your behalf and to provide you with a copy for you to keep at home.
You may also wish to consider setting up a Testamentary Trust. This means that your estate will not go to your beneficiaries directly, but instead are held on trust for them by a Trustee. You may wish to consider the additional protective measures that a Testamentary Trust can bring.
You may also wish to consider setting up a Testamentary Trust. This means that your estate will not go to your beneficiaries directly, but instead are held on trust for them by a Trustee. You may wish to consider the additional protective measures that a Testamentary Trust can bring.
There are a range of scenarios where Testamentary Trusts can be applied. For example, useful if you have minors, you might have concerns about a person not being responsible enough to receive the full amount in one distribution. This could be useful if you have concerns it wouldn’t be managed well, and would prefer that it be managed by the Trustee. Another reason is that you may have children or other beneficiaries with a disability and want to ensure their medical expenses, accommodation, education and bills will be paid on their behalf as they are incurred.
Another scenario may be that you have a property that you do not want to be sold or an investment property that you do not want sold but instead, for the rental income to be distributed.
There are many different reasons why testamentary trusts can be beneficial, including tax benefits. It is an effective way to ensure that your assets and estate are preserved and protected, in the way you intended.
What would happen if you were to lose the capacity to make decisions for yourself or manage your finances? Even if only for a few days or weeks?
Consider, currently:
In the event you are ever significantly affected by injury or illness, do you have a preference about how you would want to be treated if you couldn’t communicate your wishes?
For instance:
Many people assume that their next of kin will be automatically assigned to make decisions on your behalf; however, if they have not been specifically nominated, other people can be allowed to make these decisions for you. Learn more about protecting your estate and ensuring that those who end up making financial decisions on your behalf, as well as medical and health care decisions, have your best interests in mind. For more information about this, go to this page.
If you wish to consider the appointment of a solicitor as the Executors of your Estate and want to discuss your wishes confidentially, make a time to meet with one of our wills and estate planning professionals.
If you have discovered that you have been left out of a Will and you wish to contest it, you may be eligible to apply for something known as a Family Provision Claim. Reach out to our team to discuss your circumstances and we can advise you about your eligibility to make an application.
If you are seeking information about the topics below, click on the title to learn more.
Our team helps individuals and Executors on both sides of Will disputes. We understand the strategies and avenues that can be used on both sides of any Will dispute. As experienced Will dispute lawyers working across greater Sydney, we can assist with estate dispute resolution methods including negotiation, meditation and Court representation.
Seek early advice to ensure you are approaching your claim or dispute in the correct way.
