Wills and Estates
If you’ve come to this page, then you might be wondering:
- How do I appoint someone to make decisions on my behalf?
- What happens to my assets, superannuation and the care of my children when I die?
- How can I make sure that my loved one with special needs is looked after when I die?
- My family member has passed away and I think I’m the one that needs to arrange things. What do I do now?
- I think I should have been more significantly provided for in someone’s Will. What are my options?
- I think someone is going to make a claim against my loved one’s estate. What happens now?
How can we help?
Powers of Attorney and Health Documents (to be used before death)
Wills, Testamentary Trusts and succession documents
Administering a Deceased Estate
Claims against Deceased Estates
Powers of Attorney
and Health Documents
It's perfectly normal to want to make all of your own decisions in life. Occasionally though, we are too unwell or too far away to do so, and we need a bit of help.
If you face a situation that requires a loved one or friend to make a decision on your behalf, we want this to be a smooth process for them, with conditions in place to protect your wellbeing.
There are various documents which assist you to make these arrangements in relation to your financial, personal and medical decisions, while you still have the mental capacity to do so. In NSW you may hear these documents referred to as an Appointment of Enduring Guardian, General Power of Attorney, and/or Enduring Power of Attorney. In Victoria, you may have also heard the terms Appointment of Medical Treatment Decision Maker and Advanced Care Directive.
We're here to explain the differences between these documents, how they operate for your own benefit, how your attorneys and decision makers will use them and then make a suggestion as to which documents are best for you. At the same time, we will usually chat to you about your Will and succession planning. You'll find that information by scrolling a little further, or clicking the link below.
Frequently Asked Questions - POAs and Health Documents
The short answer is yes, if it is appropriate for you.
Both NSW and Victoria have binding and non-binding versions of what is known as an Advanced Care Directive.
The non-binding documents are seen as an opportunity to document your wishes and values, to then allow your attorney, guardian or decision maker to make a decision that is best for you. Ultimately, they still hold the decision-making power if you are unable to decide for yourself.
The binding versions, if completed correctly, must be followed and cannot be overridden by anyone other than you (as long as you have mental capacity to do so).
This is general advice only, and you should work closely with a doctor and consider seeking legal advice before making a binding directive.
As at July 2024, no.
NSW and Victoria both have different forms for financial and health decisions. In Victoria, you can go one step further in separating who you wish to appoint to make financial decisions, personal decisions (such as where you will live) and medical treatment decisions.
Preferences for your medical care (non-binding or binding) are also dealt with in separate documents. See the above answer for more information.
An Executor is appointed in your Will and only takes on that role once you have died. An Executor has no power to make any decisions for you while you are alive, even if you have lost decision-making capacity.
Attorneys, guardians and decision makers are effectively the same, but are labelled differently depending on the document. For example, someone that you appoint to make your medical decisions is known as a Medical Treatment Decision Maker in Victoria and an Enduring Guardian in NSW. The term attorney is usually used when referring to people appointed to make financial or personal decisions.
Medical professionals consider a list of potential decision makers (usually close family), if you are unable to make your own medical decisions.
If you have a preference as to who you would like to make those decisions, then it is best to make an Appointment of Medical Treatment Decision Maker (Victoria) or an Appointment of Enduring Guardian (NSW).
Your attorney, decision maker or guardian does not need to have the original documents with them to be able to make decisions when needed. It is sufficient for them to have a certified copy.
If you know in advance that decisions may need to be made on your behalf, such as undergoing a medical procedure, then you may decide to provide the hospital with a copy of the relevant documents ahead of time.
Wills and Estate/Succession Planning
If you're time poor, consider yourself fit and healthy or aren't particularly keen to think about your own death, then chances are you have put off making a Will.
Regardless of your age, it's very important to have a Will in place. The biggest motivation to do so is to make life easier for the people that survive you. If you die without a Will and have assets that fall within certain categories or thresholds, your estate does not easily transfer to your spouse or next of kin. Rather, it can create a long, expensive and potentially stressful situation for whoever becomes responsible for administering your estate.
If this doesn't relate to you, then perhaps you're seeking to update your Will due to a change of circumstances or to provide for certain people differently. You may have also heard others talk about testamentary trusts or special disability trusts and are wondering if either may be beneficial to your estate.
Regardless of what brings you here, we are proud to have the knowledge and experience to assist. We will listen carefully as you tell us about your unique circumstances, discuss the available options and make a recommendation that is appropriate for you.
If you jumped to this section and haven't considered documents for someone else to make your decisions if and when you lose capacity, you might like to click on the link below.
Frequently Asked Questions - Wills and Estate/Succession Planning
If you pass away without a Will, your assets do not automatically pass down to your family members. There are laws in both New South Wales and Victoria which govern who is entitled to receive your estate, and it is possible that those laws may result in your estate not being received by the people whom you wish to receive it upon your death.
In addition, a member of your family will probably have to apply to the Supreme Court to be appointed as what is known as an ‘administrator’, to be able to deal with your estate assets and divide them in accordance with the relevant law. This is a very time consuming and expensive process, which can cause a lot of stress to your grieving family members, at an already difficult time.
Different people have different assets and different family situations. Your Will needs to be personalised to fit your circumstances. Sometimes you may need an Affidavit in addition to your Will, or maybe it would be best to set up a trust in your Will. During your first appointment with Belbridge Fleming Law, we will talk with you about your unique circumstances so that we can prepare a Will that will give you peace of mind.
The laws in Victoria and NSW set out lists of people who can make a claim against your estate. Those people would need to bring an application and are not guaranteed to be successful. We can assist you with putting some roadblocks in place to hopefully prevent those kinds of claims from being successful. However, this shall depend on your personal circumstances and we are happy to talk about all of these issues with you.
There are many different trust structures available to you, however there are two in particular that are typically created in your Will. The first is a testamentary trust. A trust like this can be used to protect the assets of your estate and provide some protection to your immediate family. These trusts are created in your Will and only come into existence when you pass away. Testamentary trusts are not suitable for everyone, but we are here to sit down with you and work out your unique needs.
The other form of trust that you may need is a Special Disability Trust. If a person with a disability is dependent on you, it is no doubt very important to you to make sure that they are looked after financially after you pass away. We can include wording in your Will to make sure that a special disability trust is set up. You will appoint at least two trustees to look after this trust, who will then use the money in the trust to make sure that the person with a disability is looked after financially.
Deceased Estates
The grief of losing someone can be all-consuming and we're very aware of how unfair and overwhelming it can be to have paperwork to deal with on top of that. This is our motivation to provide the best possible legal assistance during one of the toughest chapters of life.
The work required to administer a deceased estate varies hugely depending on the documents that the deceased left behind, the assets that they held and the people in their family. In your initial meeting with us, we aim to take a significant amount of weight off your shoulders as we answer your questions, piece together the overall estate and tell you exactly what needs to happen next.
If the entities and assets that make up the deceased estate are especially complex, then we will work alongside the estate Accountant, Financial Planner and other professionals to ensure that nothing is missed.
Frequently Asked Questions - Deceased Estates
The Executor is responsible for making the funeral arrangements if the Will maker has not already made those arrangements. The Executor should follow any directions left by the Will maker as to the funeral arrangements but is not bound to do so.
An estate is all of the property and liabilities of a person in existence after their death. An Executor is a person who has been appointed in a Will to manage the Will maker’s estate – see the next question and answer for more information.
The role of an Executor is to carry out the wishes of the Will maker as specified in the Will. This is a position of great trust and must be carried out with care and honesty. The Executor must:
- Act in the best interests of the estate and all of the beneficiaries and cannot act in their own interests if they are not the same as the interests of the estate and the beneficiaries
- Do what is specified in the Will unless there is a proposal to distribute the estate other than as set out in the Will, in which case all of the adult beneficiaries need to agree to the change
- Protect all of the assets of the estate until they are distributed
- Keep good records of everything they have done for the estate
- Obtain advice from professionals such as lawyers, accountants and real estate agents where necessary.
A person appointed as an Executor can refuse to accept the position of Executor, but this should preferably be done before that Executor has taken any significant steps after the funeral has been arranged. If the Executor seeks to step down from that position after they have taken significant steps beyond arranging the funeral, they must obtain the consent of the Supreme Court.
If there is no Will, the next of kin of the deceased usually has to apply to the Supreme Court for a document called Letters of Administration. This document is the court’s formal approval for someone to administer the estate of the deceased, effectively acting in the same role as an Executor but called an Administrator. Approval is usually granted in favour of a family member or another person who has a substantial interest in the estate.
Claims against Deceased Estates
Either side of an estate claim is probably not a place that you hoped you would find yourself. If you feel that you have not been fairly provided for in someone else's Will, we can provide you with personalised advice about where you stand. If you are eligible to make a claim and would like to do so, we can walk that path with you.
If your loved one has passed away and you believe that someone else may be considering making a claim, it is a good idea to get ahead of things. Contact us so that we can advise you about where the estate stands and what the next steps are.
Frequently Asked Questions - Deceased Estates
Whether you are entitled to anything will depend on a number of things, but usually the first considerations are in which state you would be bringing your claim, whether you are an “eligible person”, whether the deceased owed you any obligations or responsibilities, and your financial resources including earning capacity. There is no hard and fast rule. Every matter will turn on the facts and circumstances that apply to you.
Even if you have been left something in someone’s Will, you might still be able to make a claim for greater provision from the deceased’s estate (or notional estate in NSW). It will depend on the facts and circumstances that apply to your matter.
The answer to this is “it depends”. It depends on a lot of different things as set out above, plus other things, including whether you had a family law settlement and what (if any) other arrangements existed between you after your intimate relationship ended. It will always depend on the facts and circumstances of your particular case.
Everyone enjoys testamentary freedom. That is, you can leave your estate to whoever you wish. However, we recommend that you obtain legal advice before deciding to leave someone out of your Will. The law on estrangement may surprise you. You may find that according to law you are not actually estranged from your family member or the estrangement is not enough to justify leaving someone out.
There are several differences between NSW and Victoria when it comes to estate claims. The major difference is that in NSW, in certain circumstances, there may be an ability to “claw back” any notional estate of the deceased if there is not enough left in the estate to satisfy a claim. In a lot of ways however, the assessment of a claim in NSW and Victoria is generally similar, subject to other minor differences such as the eligibility of claims by step-children.
