WILLS AND ESTATES
Whatever your relationship status is, whatever assets you own, having a valid will ensures that your estate is distributed to your beneficiaries as you intend. It is equally important to ensure that you have appointed a trusted person or persons to make financial, personal or medical decisions for you during your lifetime if you lose capacity due to illness or injury.
The Harwood Andrews’ Wills & Estate team will collaborate with you to tailor a suite of documents that takes into consideration your wishes, your unique family and financial circumstances, tax-effective estate planning options, and ultimately, minimise the risk of future disputes. This includes tailoring:
a will, including some more complex will structures such as testamentary trusts or special purpose trusts
enduring powers of attorney (financial & personal)
In creating these documents, the Wills & Estate team will guide you through:
appointing executors, trustees and guardians
giving effect to your wishes about the distribution of your assets
protecting the interests of disabled or “at risk” beneficiaries
dealing with the future succession of family trusts
business and family farm succession planning
life insurance and its use in estate planning
superannuation funds (including SMSF) and making a binding death benefit nomination
taxation of superannuation death benefits
establishing testamentary trusts and special disability trusts
options for blended families
dealing with separation or divorce
mutual wills agreements
determining capacity for someone to make a decision or sign a document
Harwood Andrews was recognised in the 2023 listing of Recommended Victorian Wills, Estates & Succession Planning Law Firms and third tier Estates Litigation Firms.
These 2023 listings recognise law firms practising within the areas of Wills, Estates and Succession Planning and Estates Litigation matters in the Victorian legal market who have been identified by their peers for their expertise and abilities in these areas.
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YOUR WILL
Being proactive about your final intentions, including how your family will be provided for, who will care for your child/ren, how your assets will be distributed, and who will manage your estate, are not decisions to enter into lightly or in an incapacitate state of mind.
Being proactive about your will is a fundamental necessity. The traditional family unit is no longer the modern-day reality—blended families, second or multiple marriages, or single-parent families all require careful consideration.
Additionally, in Australia, 70% of all businesses are family owned and is the sole source of income for the family. It is therefore vital that a will is a starting point for succession planning—be it, a family business or a family farm. Creating a will of this nature requires the insight and comprehensive understanding of the taxation consequences relating to superannuation death benefits, self-managed superannuation funds, private companies, and trusts.
Additionally, if there are intended beneficiaries of your estate who may benefit from asset protection, you should consider testamentary trust wills. Rather than leaving your assets directly to beneficiaries, a testamentary trust will give your assets to a discretionary trust, for the potential benefit of the intended beneficiaries and their families. The testamentary trust is established upon death. Testamentary trust wills can also provide taxation advantages.
Special disability trusts should also be considered if you have intended beneficiaries with a severe disability. These trusts offer significant pension advantages to the beneficiary.
Harwood Andrews’ wills & estate team partners with you to understand your unique situation and ensure your will is created in a cohesive manner, and where necessary, collaborate with our commercial and tax teams for a holistic and sophisticated approach to your will and/or more complex structures such as a testamentary trusts or special purpose trusts.
For straightforward, simple circumstances where you do not require a meeting with a lawyer our YOURWILL online wills platform may be all you need - LEARN MORE
For more complex situations where you will need to meet with a lawyer please complete this form below.
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ENDURING POWERS OF ATTORNEY AND APPOINTMENT OF A MEDICAL DECISION MAKER
Taking control of your future in the event you become ill or injured, temporarily or permanently, means ensuring you have appointed—with a sound mind—a person to make decisions on your behalf (also known as ‘substitute decision making’). By doing this you grant the nominated person to:
have power over your assets and finances,
make lifestyle decisions on your behalf, and
make decisions about medical treatment on your behalf.
An Enduring Power of Attorney (POA) is a legally binding document that stipulates the power bestowed to someone you trust, in the event of mental incapacity. The appointed person, the POA, will have substantial powers to make decisions in relation to your financial (such as paying bills and managing your bank account/s) and personal matters (such as where you live).
If you do not appoint an enduring power of attorney, then the Guardianship & Administration Tribunal might appoint someone to be your Administrator and/or Guardian—someone you would not have selected yourself, so it is preferable that you sign the necessary documents to appoint who you want.
A Medical Treatment Decision Maker is a legally binding document that appoints someone known to you who, ideally, respects your values and preferences, to make decisions on your behalf about medical treatment if you are incapable to do so.
Coupled with a robust will, Harwood Andrews’ wills & estate team are strong advocates for formalising an Enduring Power of Attorney and a Medical Treatment Decision Maker. Our team also has considerable experience with Advance Care Directives and measuring capacity.
SUPERANNUATION DEATH BENEFIT NOMINATIONS
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.
Harwood Andrews’ wills & estate team offer expert advice in relation to disputes concerning superannuation death benefits and applications to the Superannuation Complaints Tribunal.
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PROBATE AND ESTATE ADMINISTRATION
Losing a loved one is a difficult time. And if you have been entrusted as an Executor of the will, there are various duties that you will need to comply with and carry out correctly.
However, before an Executor of a will can commence the distribution of the deceased’s estate and carry out their intentions, the Executor must first apply for probate to the Supreme Court of Victoria to ensure the validity of the will. Once verified, ‘grant of probate,’ the Executor has the authority to deal with the deceased’s assets within 12 months from the date of the death.
Where a loved one dies without a will (also referred to as ‘intestate’’), or a valid will, an application for Letters of Administration by the next of kin is required. Once approved, the next kin will become the Administrator of the Estate. The division of the estate will be distributed according to the Administration and Probate Act 1958 (Vic).
Harwood Andrews’ wills & estate team can assist Executors and next of kin in their applications for probate or Letters of Administration.
CONTESTING A WILL AND OTHER DISPUTES REGARDING WILLS
When you create a will, you believe that after you are gone, your intentions are carried through as per your requests. However, ‘challenging a will’ or ‘contesting a will’ is becoming increasingly common and often occur as a result of someone close to you believing:
The will was not made with a sound mind.
The will was made under the influence by others.
They were not adequately provided for in terms of asset division.
Harwood Andrews wills & estate team has considerable experience in dealing with these sensitive matters and act for:
executors in defending claims against estate, or
people who believe that they have been unfairly treated by a will and wish to make a claim against the estate.
THE FAMILY FARM & SUCCESSION PLANNING
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.
There are a wide variety of events that should prompt you to review your succession plans, for example:
the ageing of an executor appointed in your will,
the arrival of children or grandchildren,
the breakdown of a child’s marriage,
the threat of some commercial misfortune to a child,
the graduation of a child into a professional career, or
a resolve to assist a needy charity.
Not only do clients need to consider who should take control of the farm in future, but also:
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.
Comprehensive planning and the careful structuring of ownership can alleviate many problems that might otherwise arise.
Harwood Andrews’ wills & estate team, together with the commercial transactions & advice and taxation team to provide extensive and thorough review of your situation and provide a strategy, direction and related document to ensure your succession is executed as you wish.
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VCAT ADMINISTRATION AND GUARDIANSHIP APPLICATIONS
Where an adult is unable to make decisions because of a disability, the Victorian Civil and Administrative Tribunal (VCAT) will appoint a guardian.
There are numerous powers and duties that you hold as an appointed guardian, such as making decisions relating to:
Where they’ll live and with whom.
Type of employment.
Medical treatment.
Visitation and access to services.
Harwood Andrews’ wills & estates team can assist families seeking a guardianship arrangement and/or assist you in understanding your legal obligations if you’ve been appointed a guardian.
