ESTATE PLANNING

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Making a will ensures that your assets are distributed according to your wishes after your death. Without a will, the laws of intestacy determines how your estate is divided, which may not align with your intentions. A will also allows you to name guardians for minor children, choose an executor to manage your estate, and minimise potential disputes among loved ones. It’s a crucial step in protecting your family and providing clarity during a difficult time.  

A lawyer ensures your will is legally valid, clearly written, and tailored to your unique circumstances. DIY wills or generic templates often miss important details, which can lead to confusion, legal challenges, or even an invalid will. 

A lawyer can help you address complex issues such as blended families, business ownership, tax planning, or special needs beneficiaries—giving you peace of mind that your wishes will be carried out exactly as intended. 

In most states, any person who is over the age of 18 and is of sound mind can make a will. Being "of sound mind" means you understand the nature of making a will, the extent of your property, and who your beneficiaries are. Provided you have testamentary capacity, you can legally create a will to direct how your assets should be handled after your death. 

An Executor is the person you name in your will to carry out your final wishes and manage your estate after your death. Their responsibilities include notifying assets holders of your passing, collecting assets, paying debts and taxes, and distributing property to your beneficiaries. If appropriate, they will also need to apply to the court for Probate. 

It is important to note that your Executor can also be a beneficiary in your will. 

Your executor/s must be over the age of 18 years, of sound mind, and not be a disclosed bankrupt. It is advisable to appoint someone you trust and who is capable of making sound financial decisions on behalf of your estate.

You should also consider whether you would like to appoint one person or more than one person. You can dictate whether these Executors are to act jointly and severally (i.e. together on all decisions) or in the alternative (i.e. the secondary Executor acts only if the Primary Executor can no longer act in that capacity). 

It's a good idea to make a will as soon as you have assets, get married, have children, or simply want to ensure your wishes are honoured. Life is unpredictable, and having a will in place provides peace of mind that your loved ones will be taken care of. It’s especially important during major life changes—like buying a home, starting a business, or going through a divorce. 

You can always update your will as your circumstances evolve. 

Once you lose capacity, you are unable to provide instructions to prepare a Will. 

Your Australian will may cover overseas assets, but it depends on the laws of the country where those assets are located. Some countries recognise Australian wills, while others require a separate will that complies with their local laws. 

If you have property or investments overseas, it’s important to seek legal advice. In some cases, having an international estate plan or separate wills for each country—carefully coordinated—is the best way to avoid conflicts and ensure your wishes are followed globally. 

Yes, you can make a new will at any time, and in fact, it is recommended when your circumstances change—such as after marriage, divorce, the birth of children, or significant changes to your assets.  

Your most recent valid will revokes any previous wills. To avoid confusion or legal issues, it’s important to let your executor know where your current will is stored. 

If you pass away while your children are still minors (under the age of 18 years), a legal guardian will need to be appointed to care for them. In your will, you can nominate a guardian —someone you trust to raise your children according to your values and wishes. Including a guardianship nomination in your will gives you peace of mind and helps protect your children’s future. 

A Power of Attorney is a legal document that gives someone you trust (your "attorney") the authority to make financial and legal decisions on your behalf if you become unable to do so yourself due to illness, injury or incapacity. In NSW, this document can be general or limited, allowing the attorney to handle tasks such as managing bank accounts, selling property, or handling investments. 

A general Power of Attorney is temporary and only valid while you are mentally capable. Once you lose capacity, it becomes invalid. On the other hand, an Enduring Power of Attorney remains valid even if you lose mental capacity, allowing your appointed attorney/s to continue making decisions on your behalf. 

An Enduring Power of Attorney is crucial for long-term planning and can cover a wide range of decisions related to finances and property.

An appointment of enduring guardian is a legal document that allows you to nominate a trusted person/s to make decisions about your medical, dental and lifestyle affairs when you become unable to do so yourself. 

This document will come into effect when an individual loses mental capacity due to illness or injury and needs someone to make decisions about their daily care, medical treatment, and living arrangements. 

Yes, in both Power of Attorney and Guardianship matters, you can appoint more than one person to act jointly or severally (meaning they can act together or independently). For example, you might appoint two people to make decisions together, or you may appoint one person as a primary decision-maker and then a backup in case the primary person is unavailable or unable to act. 

If you become unable to manage your financial, legal, or personal care affairs without having a Power of Attorney and Guardian in place, a family member or other interested party may need to apply to the NSW Civil and Administrative Tribunal (NCAT) for guardianship and financial management orders. This process can be time-consuming, costly, and may not result in the appointment of the person you would have chosen.

Yes, these appointments can be challenged if someone believes that the person appointed is not acting in your best interests or if they suspect that you were not mentally capable when the documents were created. 

Challenges can be made through the NSW Civil and Administrative Tribunal (NCAT) or through the court system, depending on the situation. To avoid disputes, it’s important to ensure that the documents are created and executed properly and that the people you appoint are trustworthy and capable of handling the responsibilities.