Estate Planning

Yes. Property held as joint tenants passes to your partner automatically, but only if they survive you. If you die together, the law decides who inherits both estates. A will is also where you choose who manages your estate, name a guardian for children under 18 and set the age your children inherit. Without a will, your family will usually need to apply for letters of administration, which can take far longer than probate.

A testamentary trust is a trust your will creates on your death. Instead of inheriting money in their own name, each child inherits into a trust they can control but do not own personally. This can protect the inheritance from creditors and, to a degree, relationship breakdown, and lets income be shared across their family for tax. It is usually worthwhile where the estate is substantial or there are young or vulnerable beneficiaries.

A special disability trust is a trust for a person with a severe disability, set up under Commonwealth social security law, and it can be created by your will. Assets held in the trust, up to an indexed limit, and a home the trust holds for the beneficiary to live in are generally not counted in the beneficiary's Centrelink assets test, so an inheritance held in the trust, within that limit, need not reduce their pension. The beneficiary must meet strict disability criteria, the trust must follow the government's model trust deed, and the money can only be spent on the beneficiary's care, accommodation and certain other needs. If the beneficiary does not qualify, a protective trust may suit instead.

A protective trust is a testamentary trust for a beneficiary who cannot safely manage an inheritance, for example because of an addiction or gambling problem, an intellectual disability, vulnerability to pressure from others, or a history of financial trouble. Instead of the beneficiary controlling the trust, a trustee you choose decides when and how the money is used for them. The beneficiary still benefits, but cannot spend the capital or be pressured into handing it over. There are no disability criteria to meet, but there is also none of the special Centrelink treatment a special disability trust receives.

To a point, but we usually advise against tight control. Conditions such as "only if she marries within the faith", "the farm must not be sold for 20 years" or "the money is only for a medical degree" cannot adapt when circumstances change, and you will not be there to adjust them. Some conditions are void because they are uncertain or against public policy, and a failed condition can produce a result you never intended. Rigid terms also invite disputes and family provision claims, and can tie up assets for years at ongoing cost. A better approach is usually a discretionary testamentary trust with a trustee you trust, sensible ages for receiving capital, and a letter of wishes explaining what you would like. The trustee can follow your wishes while responding to things you could not foresee.

Usually not, apart from sentimental items. Leaving the house to one child and the shares to another can seem fair, but values change, a gift of a particular asset generally fails if the asset is sold before you die, and one asset may carry a mortgage or a capital gains tax bill the other does not, so the result can be very unequal. Leaving the estate in shares, for example equally between your children, keeps the outcome fair whatever happens to the assets, and your executor can still give the house to one child and the shares to another as part of their shares, if they want that. Sentimental items such as jewellery are different. Talk to your family about them first, and then either describe each item clearly in your will or list them in a letter of wishes, so your executor knows exactly what goes to whom and your family already understands why.

Both let someone use your home after you die, with the property then passing to others, such as your children, when the right ends. A right to occupy is a right to live in the home and nothing more. The person cannot rent it out or keep any income from it, and the right usually ends when they die or permanently move out, for example into aged care. A life interest gives the person the full use and benefit of the property for the rest of their life: they can live in it, or rent it out and keep the rent, and if your will allows, it can be sold and the money reinvested for them. A right to occupy often suits a blended family, where your spouse needs a secure home but the home must end up with your children from an earlier relationship. A life interest often suits a spouse who may need aged care, because the home can then be rented or sold to help pay the fees. Either way, your will should say who pays the rates, levies, insurance and repairs, as this is a common cause of disputes. Both can also affect capital gains tax, land tax and pension entitlements, so they need to be drafted with those in mind.

A letter of wishes is a signed note that sits alongside your will and tells your executor and trustees what you would like, without binding them. It suits things that need flexibility or privacy: who should receive sentimental items, how a testamentary trust should be used for each child, your funeral wishes, and the reasons behind your decisions. It is kept out of the will because a will is formal and fixed, and becomes available to beneficiaries and others after your death, while a letter of wishes can be updated whenever your circumstances change without re-signing your will. Because it is guidance only, anything you need to be legally binding still has to go in the will itself.

A deed of family arrangement is an agreement between the beneficiaries of an estate to divide it differently from the will or the intestacy rules. It is often used to settle a family provision claim, or where the family agree that a different split works better. Every beneficiary whose share changes must agree, and must be an adult with capacity. If a child or a person without capacity is affected, the court must approve it. It can also cost money: where a beneficiary ends up with more than their original entitlement, NSW stamp duty can apply to the extra, and capital gains tax concessions may be lost. This is one reason we prefer leaving the estate in shares. If the will leaves the estate in shares and gives the executor power to appropriate assets, the executor can allocate particular assets to particular beneficiaries as part of their share, usually with only nominal stamp duty and without needing a deed of family arrangement.

The intestacy rules decide who inherits, in a fixed order. Your spouse or de facto partner comes first. If all your children are also your partner's children, your partner takes everything. If you have a child from another relationship, your partner receives your personal effects, a fixed sum that is indexed to inflation and half of the rest, and all your children share the other half. With no partner, your children share equally. If there are none, the estate goes to your parents, then your brothers and sisters, then your grandparents, then your aunts and uncles, then your first cousins, and only if there is none of them, to the State. Someone will usually need to apply to the Supreme Court for letters of administration before the estate can be dealt with. The intestacy rules deal only with property. They do not say who cares for your children.

If the other parent survives you, they will usually continue to have parental responsibility. In NSW a parent can also name a guardian for their children under 18, and a will is the usual place to do it. The guardian you name can act with a surviving parent, unless that parent objects, and steps in if both parents have died. Naming a guardian is not binding on the court, which always decides on the child's best interests, but it is strong evidence of what you wanted. If no guardian is named and neither parent is alive, there is no default order. A relative or someone else must apply to the court for orders, and the children's care is uncertain until then. The guardian looks after the children. Their inheritance is managed by the executor or trustee your will appoints, who can be the same person or someone different.

No one automatically has legal authority for the children. A grandparent, aunt or uncle, adult brother or sister, or anyone else concerned with the children's care can apply to the Federal Circuit and Family Court of Australia for parenting orders. There is no ranking of relatives. The court decides on the children's best interests, looking at their relationship with each person and each person's ability to care for them. If no suitable family member steps forward, the Department of Communities and Justice may become involved through the Children's Court. Where the family agree, orders can often be made by consent relatively quickly, and urgent cases can be given priority. If relatives disagree about who should raise the children, a contested case can take a year or more. Naming a guardian does not bind the court, but it gives everyone a clear starting point.

They can look after the children day to day, but without parental responsibility they have no legal authority to make major decisions. In practice they may struggle to enrol the children in a new school, consent to non-urgent medical treatment, get a passport, or deal with Medicare, private health cover or the children's bank accounts, and they may be asked to prove their authority at every step. Emergency medical treatment can still be given. Interim orders can fill the gap while the case runs, but the family is dealing with court paperwork at the worst possible time. A guardian named in your will can usually step in straight away, although parenting orders may still be needed for some things, such as a passport, or if someone disputes the appointment.

Not automatically. Super is paid by your super fund trustee, following a valid binding death benefit nomination if you have one. Life cover inside super follows the same nomination. If there is no binding nomination, the trustee generally decides, within the fund's rules, whether to pay your dependants or your estate. A policy outside super is paid under its own terms, usually to the beneficiary named on the policy or, if you own the policy and no one is named, to your estate. We review these as part of your estate plan so they work with your will.

It depends on how you hold it. Property owned as joint tenants passes automatically to the surviving owner and is not covered by your will. Property owned as tenants in common is covered: your share passes to whoever your will names, including into a testamentary trust. We check your titles before drafting.

Australia has no inheritance tax. A property passing to a beneficiary under your will usually attracts only a small fixed concessional duty, currently $100, and generally no capital gains tax at that point. If your home is sold and the sale settles within 2 years of your death, it is generally free of capital gains tax, provided it was your main residence and was not being used to produce income. Investment property, land tax while the estate holds it, and a beneficiary buying out the others are treated differently. See our guide to tax on inheritance for more detail.

An enduring power of attorney lets someone manage your money and property, such as paying bills or selling property, if you are away or lose capacity. An enduring guardian makes personal decisions, such as medical treatment and where you live, if you lose capacity. Most people need both. Both end on death, when your will takes over.

They cover different parts of your life. An attorney makes financial and legal decisions, such as paying bills, managing investments or selling property. A guardian makes personal decisions, such as medical treatment, where you live and what care you receive, and neither can do the other's job. The person best placed to manage your money is not always the best person to make decisions about your health. For example, you might choose a child who is an accountant or runs a business as your attorney, and a child who is a nurse, or who lives nearby and sees you often, as your guardian. Separate documents let you choose the right person for each, or the same person for both. They also start differently: an enduring power of attorney can start while you are still well, while an enduring guardian can only act once you lose capacity. And splitting the roles means no single person controls both your money and your care, which can protect you where there is a risk of family conflict or financial pressure.

Yes. An ordinary, or general, power of attorney stops working if you lose mental capacity, which is when it is most needed. It suits a short-term need, such as someone signing for you while you are overseas. An enduring power of attorney keeps working after you lose capacity. Because of that, it must be signed in front of a prescribed witness, such as a lawyer, who certifies that they explained it to you and that you appeared to understand it, and your attorney must sign to accept the appointment. Both end on your death.

You choose when you sign it, and there are 3 usual options. The first is once your attorney accepts by signing, so the power can be used straight away, even while you are well. This is the most practical, because there is nothing to prove later, but it relies on trust, and your attorney must still act in your interests. The second is once a doctor confirms you cannot manage your affairs. This guards against early use, but the attorney has to obtain the doctor's document first, which causes delay when something happens suddenly or your capacity comes and goes, and banks will ask to see it. The third is once your attorney considers you need help managing your affairs. No document is needed, but it depends on your attorney's judgement and others may still ask for evidence. You can also choose a different starting point that suits you, for example only once 2 doctors, such as your GP and a specialist, both confirm you cannot manage your affairs, on a set date such as the day you leave for an extended trip overseas, or only if you go into hospital or residential care. If you do not choose, the power starts once your attorney accepts. Whichever you choose, it ends on your death.

You can cancel, or revoke, an enduring power of attorney at any time while you have mental capacity. Sign a written revocation and give it to your attorney, who must stop acting once they know about it. Tell your bank and anyone else who has relied on the power. If the power was registered with NSW Land Registry Services, which is needed before it can be used for property dealings, register the revocation as well. Making a new power of attorney does not automatically cancel an earlier one, so the old one should be revoked expressly. If you lose capacity, you cannot revoke it while you remain without capacity. If you later regain capacity, for example after recovering from an illness or an accident, you can revoke it then in the same way. While you lack capacity, family members can ask the NSW Civil and Administrative Tribunal to review the power if the attorney is not acting in your interests. Marriage and divorce do not cancel an enduring power of attorney in NSW.

Once you have capacity and have revoked the power in writing, your attorney has no authority, and must stop as soon as they know about the revocation. Give them the revocation in a way you can prove, such as by email and registered post. Then go to your bank yourself: as the account holder you can instruct it to remove the attorney's access and stop relying on the power, and you should do the same with any other institution. If the power was registered with NSW Land Registry Services, register the revocation so it cannot be used for property. If the attorney keeps acting, they are acting without authority and can be made to account for and repay what they took. You can apply to the NSW Civil and Administrative Tribunal or the Supreme Court to review the power and order accounts, and misuse of your money can also be reported to the police. If the power only started on a doctor's certificate, the bank may ask for medical evidence that you have regained capacity, and if the Tribunal made a financial management order while you were unwell, you need to apply to have that order revoked.

There is no ordinary guardian you can appoint in the same way, so the enduring guardian is the one you choose yourself. Without one, family can sometimes manage. For medical treatment, a "person responsible", usually your spouse or partner, an unpaid carer, or a close relative or friend, can consent for you. For bigger decisions, such as where you live, or where family members disagree, someone must apply to the NSW Civil and Administrative Tribunal for a guardianship order. The Tribunal first checks each application for risk. Urgent cases can be heard within days, but a straightforward application commonly takes around 2 to 3 months to reach a hearing, depending on how long it takes to gather the medical and other evidence. In complicated cases the Tribunal may reserve its decision, which it usually gives within 2 months. The Tribunal only makes an order if one is needed, and in choosing a guardian it looks at your wishes, how the proposed guardian gets on with you and your carers, whether they have a conflict of interest, particularly a financial one, and whether they are willing and suitable. If no one suitable is available, or the family cannot agree, it appoints the Public Guardian, a government official who may never have met you. All of this takes much longer where family members disagree, more evidence is needed, the hearing is adjourned or a decision is appealed, and decisions about your care can be on hold in the meantime. Appointing your own enduring guardian means you choose the person, not the Tribunal, and they can act as soon as you lose capacity.

They can go to the NSW Civil and Administrative Tribunal. Generally, anyone with a genuine concern for your welfare can ask the Tribunal to review your enduring guardian, and it can confirm the appointment, change what the guardian can do, revoke it, or make a guardianship order instead. For an enduring power of attorney, people such as your attorney, your guardian or the NSW Trustee and Guardian can apply, and the Tribunal can declare you did not have capacity when you signed it, vary or revoke it, remove an attorney, or appoint a financial manager. The Tribunal does not supervise guardians or attorneys and only acts when someone applies. Signing in front of a lawyer who certifies that they explained the document and that you appeared to understand it is one of the best protections against a later claim that you lacked capacity. It also helps to tell your family who you chose and why, and to name a substitute.

No. Your enduring power of attorney covers your personal affairs. Your company is a separate legal person and needs its own company power of attorney to let someone sign for it when you cannot. See our Company Power of Attorney page.

The NSW Civil and Administrative Tribunal has no role here. Disputes about wills and executors go to the Supreme Court of NSW. Before probate is granted, a person who disputes the will can lodge a caveat, which stops the grant while it is in force. A caveat can lapse after a set period unless the Court extends it. They must then prove the will is invalid, for example because you lacked capacity, were pressured into it, or it was not signed properly. After probate is granted, the Court can remove an executor, but only for a serious reason, such as misconduct, a real conflict of interest or a breakdown that stops the estate being administered. A family disagreement, or a beneficiary simply preferring someone else, is not enough. A family provision claim is different: it is a claim for a bigger share of the estate, and it does not change who your executor is.

It is an application to the Supreme Court of NSW by someone who says you did not leave them adequate provision for their maintenance, education or advancement in life. The Court can order that they receive more from your estate, whatever your will says, and even if there is no will. A well-planned estate reduces the risk of a claim but cannot remove it.

Your spouse or de facto partner at the time of your death, any of your children, including adult children, and a former spouse. Also a person who was wholly or partly dependent on you and lived in your household at any time, a grandchild who was dependent on you, and a person living with you in a close personal relationship at the time of your death, where one of you provided the other with domestic support and personal care, but not a paid carer. A former spouse, a dependant, a grandchild or a person in a close personal relationship must also show reasons why the Court should hear their claim.

12 months from the date of death. The Court can allow a late claim if there is a good reason, but it is not guaranteed and becomes harder once the estate has been distributed. A claim can be made whether or not probate has been granted.

In NSW, the Supreme Court can treat certain property that did not pass under your will as if it were part of your estate, so it can be used to pay a successful family provision claim. That property is called notional estate. NSW is unusual in having rules this wide, which is why NSW investors need to plan for it.

Common examples are property you own as joint tenants that passes to the surviving owner, super death benefits and life insurance paid directly to a beneficiary, property you give away within 3 years before your death to defeat a claim, or within 1 year where your moral obligation to provide for the person now claiming was substantially greater than any reason for the transaction, and arrangements that only take effect on your death, such as an option to buy your property.

Only if it makes a family provision order and your actual estate is not enough to pay it, or distributing your estate has left nothing to pay it from. The Court also weighs the fairness to the person who now holds the property. A notional estate order is never automatic.

Probate is the court confirming your will and your executor's authority to deal with your estate. Letters of administration appoint an administrator where there is no valid will, or where there is a will but no executor who is able and willing to act. Letters of administration usually take longer, because the court must first work out who is entitled. See our Probate and Letters of Administration page.

In our experience, a straightforward probate application is granted in about 4 weeks, or 6 to 8 weeks in busy periods. Letters of administration can take a year or more. Without a will, the court needs evidence of who is entitled, and proving a negative is hard. For example, if you are the only child of a parent who has died, the court will want to be satisfied that there is no spouse or de facto partner and no other children. That usually means affidavits from family members and others who knew the person, and every gap in the evidence adds time. Meanwhile the estate generally cannot be sold, transferred or distributed. A will that names an executor avoids most of this. See our Probate and Letters of Administration page.

Estate planning depends on your family as much as your assets, and what you want to do is not always what will hold up. For example, John has a son, Sam, from a previous relationship, and wants to leave everything to his wife, Jane. Sam could bring a family provision claim, and in NSW the court can also reach property John owns jointly with Jane. Instead, we might recommend that Jane has the right to live in the home for the rest of her life, with John's share then passing to all his children, a gift to Sam now, and a written statement of John's reasons kept with his will. The consultation lets us understand your family, identify these issues and agree the right documents before you pay for any drafting.

We start with a $660 consultation, including GST. It is credited against your document fees if you engage us to prepare them within 8 weeks of the consultation; after that, a new consultation is required. Each document then has a fixed fee: a will is $990, a testamentary trust will is $2,200, and an enduring power of attorney, an appointment of enduring guardian and a letter of wishes are $300 each, all plus GST. You receive 10% off for 2 to 5 documents and 20% off for 6 or more, and a couple's documents are counted together. A couple who each make a testamentary trust will, an enduring power of attorney and an appointment of enduring guardian pay $4,480 plus GST in total.

We confirm the timeframe with your fixed-fee quote. Drafts follow once we have any documents we need, such as trust deeds or title searches, and signing can be arranged as soon as you are happy with the drafts.

Review it every 3 to 5 years, and straight away after marriage, separation or divorce, the birth of a child, buying or selling property, setting up a company, trust or SMSF, or the death of an executor or beneficiary. In NSW, marriage generally revokes an existing will, unless it was made in contemplation of that marriage. Gifts to, and appointments of, the person you marry are not revoked, but everything else in the will is.

Separation alone changes nothing. Your spouse can still inherit under your will and act as your executor, and if you have no will they may still be entitled as your spouse. In NSW, it is only when a divorce order takes effect that gifts to your former spouse, and their appointment as executor, trustee or guardian, are revoked, unless your will says otherwise. A divorce cannot be granted until you have been separated for at least 12 months, so there is always a gap. Divorce also does not automatically cancel an enduring power of attorney, and it may not cancel a binding death benefit nomination for your super, depending on your fund's rules, and ending a de facto relationship does not revoke anything in your will. Update all of these as soon as you separate.

Yes. In NSW a former spouse can apply to the Supreme Court for provision from your estate, even after divorce and a final property settlement. A current spouse, including one you are separated from but not yet divorced from, may be in a stronger position, because they do not first have to show why their claim should be heard. The claim must usually be made within 12 months of your death.

No, but they make a claim much harder. Final property orders, including consent orders, settle how your property is divided while you are both alive. They do not remove your former spouse's right to claim against your estate. They do help: a former spouse must first show reasons why the Court should hear their claim, and the Court gives significant weight to the fact that they have already received a final settlement. For example, if your orders gave your former spouse 65% of the proceeds of the family home and you each kept your own super, the Court will start from the position that your financial relationship has been finalised. Claims in that situation often fail unless their circumstances have changed significantly, for example through serious illness or caring for your children, but your estate still bears the cost and delay of defending one.

With final orders, your former spouse has received their settlement and faces a high hurdle to claim more. Without orders, and especially if you are not yet divorced, your spouse can claim as your spouse without having to show why the claim should be heard, their share of the property has never been settled, and if you are still married and have no will, they may inherit under the intestacy rules. If property proceedings had already started when you died, the Family Court can let them continue against your estate. If they had not started, your former spouse cannot begin them after your death, and their route becomes a claim against your estate. This is the main reason to finalise orders and update your will as soon as possible after separating.

The orders do not lapse on your death. They can be enforced by and against your estate, so your executor must carry them out, for example by completing the sale of the home and dividing the proceeds. There is one trap. If you and your former spouse still own the property as joint tenants, your share may pass to them automatically by survivorship before the sale happens. Sever the joint tenancy as soon as you separate rather than waiting for the property to be sold.

A spousal maintenance order ends when the person paying it dies. Your former spouse may then argue they depended on those payments and bring a family provision claim to replace them. If maintenance is part of your settlement, take it into account in your estate plan, for example by providing for your former spouse in a limited way, or by a release approved by the Court.

Not on its own. A clause in a financial agreement in which you both promise not to claim against each other's estates is not binding in NSW unless the Supreme Court approves the release. Approval is not automatic, even where the agreement contains that promise.

You and your former spouse can each sign a deed releasing your rights to claim against the other's estate, and apply to the Supreme Court of NSW to approve the releases. Once approved, the releases prevent a claim in NSW. Some separating couples include this step in their property settlement.

Make a new will. Review any binding death benefit nomination on your super, which is not affected by your will and is not automatically cancelled by divorce. Consider severing any joint tenancy so your share does not pass automatically to your former spouse. Update any enduring power of attorney or enduring guardian appointment that names them.

A codicil is a short document that changes part of an existing will. It must be signed and witnessed with the same formality as a will, and it is read together with it. It suits a small, self-contained change, such as replacing an executor who has died or adding a gift of a particular item. A new will is better when the change affects who receives most of your estate, when you are adding or removing testamentary trusts, after marriage, separation or divorce, when a child is born, or when you already have a codicil. Several documents read together invite confusion, and a codicil often costs nearly as much as a new will.

A well-drafted will usually does not list your assets. It gives by category, such as "the rest of my estate", so it keeps working when you sell a property, open an account or change super funds, and you do not need a new will every time your assets change. Listing particular assets can also backfire: if you leave "my house at 10 Smith Street" and later sell it, that gift will usually fail and the beneficiary may receive nothing in its place. We still ask about your assets and debts for 2 reasons. First, how you hold them shapes the advice, because joint property, super, companies and trusts each pass differently and some do not pass under your will at all. Second, we keep the list on our file, so that when the time comes your executor knows what exists and where to find it.