Wills & Estates

Our experienced lawyers can help you with:

• Drafting, reviewing, and updating wills
• Estate planning
• Applying for probate / letters of administration
• Estate administration
• Contesting a will / estate claims / defending deceased estates
• Supreme Court estate litigation
• Family Provision Claims

Why use a lawyer to prepare your will and estate plan?

A will is a legal document directing how your assets should be dealt with after you die. It appoints one or more executors to manage and administer your estate and nominates your beneficiaries.

Certain legal formalities must be met when a will is prepared. For example, if the will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die.

An estate planning lawyer will make sure that your will meets the necessary requirements for it to be valid and ask the right questions to ensure that your testamentary wishes are accurately reflected, providing clarity for your family, and minimising the potential for disputes. Our holistic approach to estate planning considers your individual circumstances, financial position, and family dynamics to ensure your affairs can be tailored to your unique needs.

What is a testamentary trust?

If you have minor or vulnerable beneficiaries, a testamentary trust might be the right tool to help you look after them. A testamentary trust is a discretionary trust contained in a will that comes into effect when the will maker dies. Usually, the trust will establish a series of trusts so that your assets will flow into trusts for the benefit of your dependants on your death, enabling you to provide for your children, grandchildren, and potentially great-grandchildren.

Holding assets in trust may also help protect them from claims by third party creditors in the event of bankruptcy, insolvency, court, or family law proceedings. There are also potential tax benefits of using a testamentary trust which you should discuss with a lawyer and accountant.

Dying without a will – letters of administration

Dying without a will is called dying “intestate”. In such cases, legislation dictates how your assets are distributed, which may not necessarily be how you might have otherwise planned. When someone dies intestate, their family will usually need to apply to the Supreme Court for letters of administration before dealing with the estate. This can result in additional stress and costs. If a family member or somebody close to you dies without a will, we can assist you through the process and help you administer the estate in accordance with the rules of intestacy.

Estate administration

After a person dies, someone needs to look after their property and finalise their affairs. This is referred to as “administering an estate” and is typically carried out by the executor/s appointed in the deceased person’s will or an administrator (appointed by the Court) if a person dies intestate.

Before administering an estate, you may need a grant of probate from the Supreme Court. A grant of probate “proves” the will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the will. Similarly, a grant of letters of administration by the Supreme Court will enable an administrator to deal with an intestate estate.

Executors and administrators have many responsibilities which typically include:

• making funeral arrangements
• identifying and protecting assets
• applying for a grant of probate or letters of administration
• contacting the deceased’s account providers and government authorities
• claiming funds under superannuation and life policies
• distributing assets, and transferring property to beneficiaries

Sometimes, an executor or administrator will need to deal with issues that are outside their areas of expertise. For example, they may need to consider the tax implications on the sale or transfer of assets, the order of payment of debts, or deal with an estate dispute. We can help you through the legal process, providing advice and guidance so you can carry out your duties and administer the estate as smoothly and efficiently as possible.

Family Provision Claims

We can assist if you wish to make or defend a family provision claim. Strict time limits apply so it is important to seek urgent legal advice.

Australian jurisdictions have different criteria as to who is eligible to make a family provision claim in circumstances where the claimant has not been adequately provided for by a deceased person.

If you wish to make a claim, we will contact the executor or administrator and advise them of your intention. We can also seek orders from the Court to prevent the distribution of any of the deceased’s assets until your claim has been resolved.

We will work with you to gather evidence which includes details of your relationship with the deceased, your financial situation and needs, and the assets of the beneficiaries. Once your evidence is ready, the executor will be contacted for settlement discussions and your claim might settle without going to Court. If the matter proceeds to Court, it is usual practice for the parties to be ordered to attend a mediation.

Gilbert’s Legal Asset Protection Program

Protecting assets and family wealth has become an increasingly difficult task in the modern litigious society. By joining our Asset Protection Program, you will have access to all available strategies to protect your hard-earned assets and wealth and to protect that wealth for the benefit of future generations.

Our Asset Protection Strategies include:

• A review of business structures
• The use of discretionary, unit and hybrid trusts
• A review of all business and personal insurances including life insurance, income protection and total and permanent disability insurance
• A review of superannuation benefits and binding death nominations
• The use of testamentary trusts

If you need assistance, contact one of our lawyers at [email protected] or call 02 6580 0199 for expert legal advice.