Protecting Your Assets and Loved Ones: The Role of Wills and Estate Lawyers

Understanding the Importance of Estate Planning.

Planning for the future is a crucial responsibility, yet many Australians delay or overlook creating a legally binding will. Without a properly drafted will, the distribution of your assets may be determined by state intestacy laws rather than your personal wishes. This can lead to unintended consequences, disputes among family members, and financial burdens on your loved ones.

Wills and estate lawyers play a fundamental role in ensuring that your estate is distributed according to your intentions while also providing legal strategies to minimise taxes and protect assets. Given the complexities of estate law in Australia, seeking professional legal assistance is essential to safeguarding your legacy.

The Legal Framework Governing Wills and Estates in Australia.

Estate planning in Australia is governed by both state and federal legislation, with key statutes including:

• Succession Act 2006 (NSW) – This law governs wills, intestacy, and family provision claims in New South Wales.
• Administration and Probate Act 1958 (VIC) – This Act outlines the administration of estates and intestacy provisions in Victoria.
• Succession Act 1981 (QLD) – This law sets out the requirements for making a valid will and handling estate distribution in Queensland.
• Family Provision Act 1972 (WA) – This legislation allows eligible individuals to contest a will if they were not adequately provided for.

The requirements for making a valid will generally include:

1. The will must be in writing.
2. The testator (the person making the will) must be over 18 years old and of sound mind.
3. The document must be signed by the testator in the presence of at least two independent witnesses.

Failure to adhere to these requirements can render a will invalid, leading to intestacy and legal disputes. Lawyers can ensure compliance with these legal formalities, reducing the risk of complications.

Common Issues in Estate Planning and How Lawyers Can Help.

1. Avoiding Intestacy and Family Disputes.

If a person dies without a valid will, their estate will be distributed according to intestacy laws. These laws may not align with the deceased’s wishes and can lead to family disputes. For instance, under the Succession Act 2006 (NSW), if a person dies intestate leaving a spouse and children from a previous relationship, the spouse receives a statutory legacy, while the remainder is split among the children. This may not reflect what the deceased intended.

A wills and estate lawyer can draft a clear and legally enforceable will that specifies how assets should be distributed, preventing unnecessary disputes and ensuring the estate is handled efficiently.

2. Contested Wills and Family Provision Claims.

Even with a legally valid will, disputes can arise if certain beneficiaries feel they were unfairly excluded or inadequately provided for. Under Part 3 of the Succession Act 2006 (NSW), eligible persons, such as spouses, children, and dependents, can make a family provision claim if they believe they have not received adequate financial support.

A notable case illustrating this is Singer v Berghouse (1994) 181 CLR 201, where the High Court of Australia confirmed that family provision claims involve a two-step process:

1. Determining whether the claimant was left without adequate provision.
2. If so, deciding what provision is appropriate.

By consulting with experts, individuals can structure their wills in a way that reduces the likelihood of a contested estate and successful challenges, such as using testamentary trusts or providing clear explanations for bequests.

3. Powers of Attorney and Enduring Guardianship.

Estate planning is not just about distributing assets after death, it also involves planning for situations where you may become incapacitated. A power of attorney allows someone to manage your financial affairs if you become unable to do so. An enduring guardian can make medical and lifestyle decisions on your behalf.

Each Australian state has different legislation governing these arrangements:

• Powers of Attorney Act 2003 (NSW)
• Guardianship and Administration Act 1990 (WA)
• Powers of Attorney Act 2014 (VIC)

Without these documents in place, family members may need to apply to a tribunal or court to make decisions on your behalf, which can be time-consuming and stressful. Wills and estate experts can ensure these arrangements are properly established to protect your interests.

4. Minimising Tax Implications and Protecting Assets.

Estate planning also involves considering tax consequences. Capital Gains Tax (CGT) can apply to inherited assets, and the structure of an estate can affect tax liabilities. For example, assets passed to a testamentary trust can benefit from tax advantages and provide financial protection for beneficiaries.

The case of Commissioner of Taxation v Bamford (2010) 240 CLR 481 highlights the importance of correctly structuring trusts to achieve tax benefits. Experts can provide strategies to minimise tax burdens while ensuring assets are preserved for future generations.

Why Professional Legal Assistance is Essential.

DIY wills or online templates might seem like a cost-effective solution, but they often fail to meet legal requirements or account for complex family and financial circumstances. Inadequate estate planning can lead to costly litigation and unintended consequences.

Wills and estate experts offer:

• Expert guidance on legal requirements to ensure compliance with Australian succession laws.
• Tailored strategies for asset distribution, tax minimisation, and protecting vulnerable beneficiaries.
• Dispute resolution services to handle contested wills and family provision claims.

Securing Your Legacy with Proper Estate Planning.

Estate planning is a critical step in protecting your assets and ensuring your loved ones are provided for. Given the complexities of Australian succession laws and the potential for disputes, seeking legal advice from experienced wills and estate lawyers is essential.

If you have not yet created a will or reviewed your estate plan recently, now is the time to take action. Understanding your legal rights and obligations can prevent future conflicts and ensure that your wishes are carried out effectively.