The transfer of your assets according to your wishes on death takes careful evaluation and insight.
Our estate planning team can guide you through the process of will preparation, including mutual will and some of the more complex will structures including testamentary trusts or special purpose trusts.
Our focus is on clearly documenting your wishes to ensure that your estate is transferred to your beneficiaries as you intended. In doing this will aim to simplify complex issues and take into consideration tax-effective passing of assets and minimising risk associated with future disputed estates.
A good will is a fundamental necessity. The stakes are high. A homemade will is often a disaster. Complicated family circumstances such as being in a second marriage with children from a prior marriage or relationship require careful consideration of a range of options.
For some clients, the will is just the starting point of succession planning, and of itself insufficient. Superannuation death benefits, self-managed superannuation funds, private companies and trusts all require specific attention, as do taxation consequences of dealing with them. All of these issues need to be dealt with in a cohesive manner.
Where it is appropriate we recommend testamentary trust wills. These are wills which include a gift of the estate, or part of the estate, to a discretionary trust or trusts.
We have a range of sophisticated testamentary trust will options which are kept up to date and are state of the art.
These types of wills can provide asset protection for your spouse and children as well as tax savings.
Succession planning in relation to the family farm can be a difficult exercise. If it is poorly done it can lead to permanently damaged family relationships, perhaps the loss of a farm, and very substantial legal costs incurred by some family members disputing your estate.
Comprehensive planning and the careful structuring of ownership can alleviate many problems that might otherwise arise.
We involve lawyers from our Wills and Estates Department, Business Law Department and our Taxation Law Department as required when working on these succession issues. Not only do clients need to consider who should take control of the farm in future, but how non-farming children should be provided for, what risks there might be of a challenge to the will, what alternative ownership options ought to be considered, including a discretionary trust, and what taxation consequences will follow from different options.
Payment of superannuation benefits on the death of a person is a complex legal area.
Some superannuation funds allow members to make nominations in relation to their superannuation benefits upon death whereby the member nominates a particular beneficiary. The choice of beneficiaries is very narrow under the law. Some funds allow these nominations to be binding, but many do not. Many binding nominations lapse after three years, but not all.
Great care needs to be taken in relation to the above options. A nomination is like a will in relation to your superannuation, and often governs an asset of very substantial value. This applies regardless of whether the superannuation benefits are in an industry fund, a retail fund, or a self-managed superannuation fund.
We offer expert advice in relation to disputes concerning superannuation death benefits and applications to the Superannuation Complaints Tribunal.
If you lose capacity, who should be able to make decisions on your behalf? We provide comprehensive services in relation to all aspects of substitute decision making.
You can take control of your future by appointing selected people to:
have power over your assets and finances;
make lifestyle decisions on your behalf; and
make decisions about medical treatment on your behalf.
We prepare enduring powers of attorney for both financial and personal matters and we tailor these to meet your requirements. Very substantial powers are given to whoever is appointed as the attorney.
This document enables you to appoint someone to make decisions on your behalf about medical treatment if you are incapable. We strongly advocate the preparation and signing of these by our clients, as do medical professionals and hospitals.
We also prepare Advance Care Directives and provide comprehensive advice about issues surrounding these.
If you do not appoint an enduring power of attorney, then the Guardianship & Administration Tribunal might have to appoint someone to be your Administrator and/or Guardian. It might appoint someone you would not have selected yourself, so it is preferable that you sign the necessary documents to appoint who you want.
We provide comprehensive services in relation to all aspects of substitute decision making. We also make applications to the Guardianship & Administration Tribunal and appear in disputes before that Tribunal.
There have been many significant court cases in recent years concerning the question of whether a person had the legal capacity to make a decision or sign a document. Measuring capacity can be a complex task. We offer experienced guidance in this field.
Administering an estate can be a challenging task. We have substantial resources and experience in relation to probate applications and estate administration. This is a complex area and executors need to be careful.
We guide executors through the sometimes lengthy process to ensure the terms of the will are carried out and the executors obligations are met.
We make applications for probate and letters of administration in relation to wills. Sometimes these are contested. We offer specialist advice and considerable experience in relation to these disputes.
A caveat can be lodged with the Probate Office to temporarily prevent a grant of probate. It is occasionally necessary to lodge a caveat and we have experience in managing this process and the court proceedings which follow.
We regularly act for executors defending wills when claims are made by people challenging a will, and we act for claimants bringing claims against executors when wills are inappropriate.
We also deal with other types of estate disputes which often involve court proceedings.
We also handle applications to the Guardianship & Administration Tribunal in relation to guardianship and administration matters and disputes in relation to powers of attorney.