Everyone needs an effective estate plan to:

• Nominate who should receive your hard-earned assets after you die.
• Control who should make critical decisions on your behalf if you are incapacitated.
• Avoid uncertainty and minimise potential disputes and unnecessary expense for those you leave behind.
• Protect assets and vulnerable beneficiaries.
• Minimise, where legally possible, the tax implications on transferring assets.
• Give peace of mind to you and your dependents.

Risks to your assets include debt, disability, divorce, dementia, and death. Mechanisms for asset protection include insurance, trusts, binding financial agreements (pre-nups), enduring powers of attorney and wills.

We can assist you in all phases of estate planning and asset protection. We can work with you and your accountant or financial advisor to implement strategies most suited to your needs.

The Importance of Making a Will

A will is a formal document that allows you to record your wishes for the distribution of your assets after you die. A will is important for every adult but especially so for those with complicated family relationships or complex assets.

As family relationships and financial affairs are becoming more complex, it is increasingly important get advice before you make a will to minimise negative consequences, protect and maximise social security benefits for beneficiaries, and reduce the likelihood of your estate being involved in litigation.

If you die in Queensland without a will (that is, you die intestate), state law determines who inherits your property which can have unwanted outcomes. Generally, the law in Queensland divides the estate between the deceased’s spouse (if any) and their children (if any). This distribution may reflect what you would choose to do with your own property anyway, but this may not always be the case and the statutory rules of intestacy may not consider your real intentions nor your unique circumstances.

Testamentary Trusts

Testamentary trust wills are an important tool that may be used to protect your family and achieve a lasting financial benefit for them. A testamentary trust is a discretionary trust contained in a will that comes into effect when a testator dies. A trustee is appointed to manage the trust and distribute assets to beneficiaries in accordance with the rules outlined in the trust deed.

While trusts can be complex, and there are ongoing costs involved, they can help protect assets or beneficiaries in a number of ways. For instance, if a person wants to leave gifts to young children, or otherwise vulnerable individuals, a testamentary trust can assist in ensuring that funds are used to benefit them. A testamentary trust may also help to protect assets from third parties, for example, if a beneficiary is at risk of bankruptcy or being sued. Another advantage of having a testamentary trust is the potential to facilitate the favourable treatment of tax.

Enduring Powers of Attorney

An unexpected accident or illness leaving us unable to manage our own affairs can happen to anybody. Many people believe that in these circumstances their spouse or the executor named in their will automatically has power over their affairs. This is not the case. Your spouse will not automatically have control over your affairs if you are incapacitated and a will only operates on your death, which is why an Enduring Power of Attorney (EPOA) is so important.

When you make an EPOA you decide who is going to look after you and your property if you are unable to. An EPOA can save your loved ones time, money and heartache. Our experienced lawyers can explain to you the different options available in structuring your EPOA so you can make an informed decision and have peace of mind knowing that your affairs will be taken care of by somebody you trust if you are incapacitated.

Estate Administration

A deceased estate comprises the assets and debts that a person leaves after their death. The process of finalising and distributing a deceased estate is called estate administration. This involves settling the debts of the estate and delivering the remaining assets of the estate to the proper beneficiaries.

Information for Executors

When someone dies, one of the first steps is to obtain a copy of the deceased’s will. In this document, the will-maker usually nominates one or more people to act as executors of their estate. The executor’s primary responsibility is to faithfully fulfil the terms of the deceased’s will. If you are the executor of an estate, there are many things that need to be attended to, including:

• Identifying and collecting assets of the estate
• Paying any debts owing by the estate
• Lodging tax returns (if required)
• Distributing the estate in accordance with the terms of the will

In some cases, probate of the will is required. Probate is the official recognition that a will is legally valid. Many organisations holding assets of the estate will not release them without a grant of probate. Probate also provides an executor with protection if a more recent will is subsequently discovered or if the validity of the will is later challenged.

Our estate lawyers can help you carry out your duties as an executor, advise if probate is necessary or recommended, and help you administer the estate. We can also assist in dealing with any estate disputes or claims on the estate.

Information for beneficiaries

If you are an “eligible” person, such as a spouse, child or dependent of someone who has died and you feel that adequate provision has not been made for you in the will of the deceased, then you may be entitled to apply to the court for provision from the estate. This is known as a Family Provision Application (FPA). Strict time limits apply when making an FPA and we can advise you of your eligibility to make a claim and help you make the application.

If you need assistance, contact one of our lawyers at [email protected]  or call 07 3391 7511 for expert legal advice.