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Wills & Estate Planning

WILLS & ESTATE PLANNING

If you last reviewed your Will more than 5 years ago you may find that your circumstances have changed. A change in circumstances may arise when any of the following occur:-

Birth of Children
Death of a Spouse/Executor/Guardian/Beneficiary/Business Partner
Serious Illness
Divorce/Separation
Remarriage/Defacto Living arrangement
Family Dispute

You may want to include in your Will clauses to provide guardianship or Trusteeship of assets for the children, life interests for certain members of the family in properties etc.

If you do not have a Will, when you die, your assets will be divided in accordance with a strict government formula.

We can advise you if you require a Codicil or a new Will

WHY MAKE A WILL?

Divide your assets as to your wishes. If you do not have a Will, when you die, your assets will be divided in accordance with a strict government formula.
Provide for dependant children & adults
Appoint a Guardian for your children
Appoint a Trustee to administer the estate until all dependants become of age.
Give to Charity
Determine how the funeral & burial is to be conducted.
Your structure may warrant creating a Testamentary Trust which in certain circumstances provides relief to the estate and protects the estate from unwanted claims.
Provide life interests for certain members of the family in properties etc.

We can draw up a Will to reflect your wishes

WHAT IS A TESTAMENTARY TRUST?

An estate is divided into a number of equal Trusts, each Trust being for the benefit of one person. That person is called the Primary Beneficiary of their Trust.

Alternatively, the balance of the estate can also be put into one testamentary trust, with your spouse/child nominated as the Primary Beneficiary of that Trust.

Those who stand to inherit from that person, or who are nominated by that person to benefit, are called the Residuary Beneficiaries. They, too have powers over the Trust.

Each Trust is to be in effect controlled by its Primary Beneficiary, to reduce/eliminate the scope for conflict between a number of beneficiaries under a Will (if applicable).

The first Trustee will be either the Primary Beneficiary or their child or someone nominated by either.
The Primary Beneficiary and their descendants have the power to appoint and remove Trustees
The Trustee needs the written consent of the Primary Beneficiary to vary the terms or the ending date of the Trust, and
The Trustee needs the written consent of the Primary Beneficiary to lend trust monies and non-market interest rates, authorise use of Trust property etc unless this is for the benefit of, or equal benefit of the Primary Beneficiary
The Primary Beneficiary may specify how the trust funds are to be distributed at the ending of the Trust (no more than 80 years after the date of death) and if this is not done, the beneficiary’s children/grandparents take in equal parts

The Executor of the Estate retains the power, with the consent of the beneficiary involved, to distribute their portion of the Estate directly to that beneficiary or to another Trust nominated by that beneficiary.

The Testamentary Trust provisions also allows that if a child does not survive – for any children of that child to take on their behalf.

The Beneficiaries may include anyone who is:

a descendant of a grandparent of one of your children; or
a descendant of the wife/husband of one of your children; or
a trust/company (“entity”) in which any of your children, or (1) or (2) above have an interest (“an absolute, contingent or expectant interest”); or
a charity or religious institution

The powers of Executors of the Estate and the Trustees are drawn very broadly:-

to make loans, investments, guarantees, to purchase or dispose of assets etc;
to pay, with the Primary Beneficiary’s consent, the whole of a Primary Beneficiary’s entitlement to a particular beneficiary.

Our Lawyers can assist you in setting up a Testamentary Trust