Wills and Estates Lawyers

A Last Will & Testament is a crucial legal document that outlines how your estate (made up of assets like cash, property, and personal belongings) will be distributed upon your passing. It serves as a binding guide to ensure that your wishes are executed as intended. Surprisingly, only 48% of Australia's adult population has a Will, despite its significance. Creating a Will requires your written wishes and the signatures of two witnesses.

It's essential to have a Will in place to avoid complications and ensure your preferences are honoured. Your Will requires you to choose beneficiaries, appoint an executor, select a trustee if needed, designate a guardian for minor children, sign your Will with witnesses, securely store it, and update it as your circumstances change.

Generic Wills from newsagents or online sources don't consider your unique situation, including superannuation. At BestLife Legal, we provide tailored advice to ensure your superannuation and life insurance go to your chosen beneficiaries. Additionally, we can assist with important decisions like selecting Executors, Guardians, and Trustees, helping you navigate the pros and cons. Our extensive experience shows that generic Wills often result in higher legal fees and emotional distress for your loved ones, making personalised legal guidance a wise choice.

In the absence of a valid Will, your estate enters intestacy, subject to predefined laws governing asset distribution to your family. However, this distribution may not align with your preferences. To prevent potential confusion and disputes, it is highly recommended to create a Will.

While you may not have substantial assets at this stage, you still likely have some superannuation, so creating a Will is a responsible step in ensuring your wishes are followed in the event of unforeseen circumstances. It allows you to dictate how even modest possessions, like personal items or digital assets, should be distributed, ensuring your loved ones aren't burdened with additional stress during difficult times.

Regular reviews every 3 years are recommended. However, consider a review sooner in cases of significant life changes like marriage, divorce, new relationships, the birth of a child, property or business acquisitions, trust or superannuation fund setup, and when your chosen Executor/Guardian undergoes changes or is no longer suitable.

Reviewing Enduring Powers of Attorney, and superannuation nominations is also advisable. We will reach out to you annually to check in to make sure that what you have planned, still meets your needs and wants.

Certainly, we can assist in drafting Wills for your children or parents, provided everyone involved agrees to our representation.

Additionally, we offer gift vouchers for parents to give to their children, allowing the next generation to manage their wealth according to their own preferences. This ensures that accumulated or inherited assets are distributed in alignment with the beneficiaries' desires.

A testamentary trust is a special type of trust set up within a will. It comes into play after the person who made the will passes away.

This unique legal tool allows the person making the will (we call them the "testator") to provide for their loved ones, but with some restrictions on how the money is used. The interesting thing is, there's no limit to how many of these trusts a testator can create. It's like having separate savings accounts for different people.

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Testamentary trusts come in two main types. One type lets the people receiving the money make decisions about how it's used (we call them "beneficiaries"). The other type has someone the testator trusts (a "trustee") in charge of the money, especially to protect beneficiaries who might need extra help, like young children or those who have trouble managing money. These trusts ensure that the money is used wisely and keeps it safe from debts and taxes. It's a smart way for the testator to plan for the future and make sure their wishes are followed after they're no longer here.

An Enduring Power of Attorney is a special legal document that lets you choose someone to make important decisions for you if you can't do it yourself. The person you choose is called your 'attorney,' and you're known as the 'principal.'

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In Queensland, an Enduring Power of Attorney can cover two main areas:

1. Financial Decisions: This involves managing things like your bank accounts, paying bills, handling shares, looking after your superannuation, and even buying or selling property.

2. Personal or Health Decisions: This relates to where you live, who you live with, your daily life, social activities, healthcare, and more.

You can decide whether your attorney can handle both financial and personal matters or choose to appoint separate attorneys for each area. You can also set specific limits on the decisions they can make. For example, you might want them to handle real estate transactions but not make health decisions.

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In Queensland, there are two types of powers of attorney: a general power of attorney (used when you still have full decision-making capacity) and an enduring power of attorney (only used when you can't make decisions yourself).

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Additionally, you can also create an Advanced Health Directive to specify your medical treatment preferences when you can't make these decisions on your own. This directive covers aspects like the type of medical treatments you want or don't want to receive.

A Letter of Wishes, also known as a memorandum of wishes, is a non-legally binding document typically stored with a will.

While it does not carry the legal weight of a formal will, it allows a testator in Queensland to convey additional information to their estate's executor. This document serves as a guide for the executor, providing insights into the testator's wishes regarding funeral arrangements, messages for loved ones, and explanations of specific provisions in the will. It is particularly useful for parents outlining their hopes for their children's upbringing, recording preferences on education and faith, and leaving lasting messages.

Notably, a Letter of Wishes can offer detailed instructions on the distribution of sentimental items, providing flexibility for updates and ensuring a clear record. Although it does not bind legal guardians or prevent challenges to the will, the court may consider it in deliberations, as seen in the case of Underwood v Underwood [2008], where the court upheld the testator's decision based on the clarity provided in the accompanying Letter of Wishes.

When someone passes away, their life insurance and superannuation funds are often not part of their estate, and the distribution of these funds can be decided by the fund's trustee or through a Binding Death Benefit Nomination (BDBN). A BDBN allows you to specify who should receive these benefits after your passing, providing clear instructions to ensure your chosen beneficiaries receive the funds.

A BDBN is a legally binding document that gives you control and certainty over the allocation of your superannuation benefits after your death. However, it's important to note that BDBNs typically have a three-year validity period from the date of signing, after which they may expire, and the decision-making power could return to the fund's trustee. Some companies offer non-lapsing BDBNs, which remain in effect until you decide to replace or cancel them.