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Wills & Testamentary trusts

No matter your age, it is important to have plans and a strategy in place to preserve your assets for your loved ones.

Our team here at Stone Group Lawyers have the expertise and experience in Estate Planning to personalise an enduring plan for you and your estate to so that you can continue to provide for your nearest and dearest.

To book in a free 30 minute consultation with one of our Wills and Estate Lawyers, use the booking form below or call the office on (07) 5635 0180.

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Wills & Testamentary Trusts

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What is a Will?

A Will is the primary instrument underlying any estate planning. A Will take effect after your death and are a written direction to plan for the future of your assets and to dispose of them according to your wishes. They must be drafted and executed according to a particular set of rules to be valid and preserve your instructions so that your affairs are maintained. In a will, directions can be made for the provision of residential property, land, vehicles, shares, bank account funds, insurance policies and personal property such as jewellery or heirlooms as well as appointing guardianship for any of your dependents.

To make a will, a person must be eighteen (18) years of age or older and of sound mind.

Some other key terms used in a Will include:

Beneficiary: a person listed in a Will that will receive provision or a gift when the will takes effect; for example, spouses, partners, any dependents, family members, close friends or charities will often be beneficiaries to a Will;
Executor: a person you trust to dispose of your assets according to your instructions who has a sound understanding of the legal and financial obligations of this position. The Executor is in charge of the important affairs under a Will including:
- making the funeral ceremonial arrangements;
- locating the will;
  seeking the grant of probate;
- make the necessary contact with institutions including obtaining a death certificate, investment entities and banks;
  distributing assets according to the Will; and
- locating beneficiaries and the named assets in the Will.

What happens if someone dies without a Will?

In the event a person dies without a will, that person is determined to be “intestate” which means that the provision of their assets will be determined by the Court system using a legal formula. Following this formula may mean that your assets will be liquidated so that the beneficiaries can receive their share of the estate. As this is a set formula that the Courts strictly adhere to and in dividing the deceased’s estate parts of the estate may be dealt with in a way that the deceased may not have desired but were not reduced to a will including:

Selling a family home or asset,
No provision for children or grandchildren for their future financial protection,
Leaving disadvantaged family members without adequate support or financial security, or
Giving your assets to the government where the deceased has no surviving relatives.

Without a will, no inference can be drawn from the intentions you may have had for the administration of your estate or who will assume guardianship of any children who have not yet reached adulthood.

In addition, you should update an existing will at your earliest convenience where your wishes or intentions for the distribution of your estate change. At all times, your will should reflect how you would wish your affairs to be in order after your passing.

What is a testamentary trust?

A Will may also include a construct known as a Testamentary Trust. A Testamentary Trust is a trust created by a Will that comes into effect after the testator’s or testatrix’s death. When activated, the estate’s property is transferred to a trustee who holds the assets for the trust’s beneficiaries with discretion about the distributions that can be made to the beneficiaries.

Testamentary trusts present significant advantages for the management of the deceased’s assets. Mainly, the assets are owned by the trustee, and the benefit of the income and capital of the trust passes to another person/s, the beneficiaries. Separating the control and benefit derived from the trust offers protection of the assets from legal actions or misuse. Further, there are considerable taxation benefits associated with testamentary trusts that allow your beneficiaries to maximise their income from the trust.

In essence, setting up a testamentary trust allows you to have greater scope to provide for your beneficiaries in the most financially sound way that protects your estate assets in the event:

A beneficiary is at risk of bankruptcy and has creditors;
A beneficiary has a relationship breakdown with their partner;
You wish to pay for the education tuition fees of a beneficiary or a beneficiary’s dependent;
A beneficiary is engaged in a high-risk profession with a high incidence of negligence claims;
Your spouse remarries;
You have concerns regarding a beneficiary’s financial competency;
You are concerned a person not listed in your will may be eligible to contest your will; and/or
A beneficiary has an impairment that requires future provision.

Your Estate Planning requires skill and expertise to devise a plan that protects your assets. Contact us today for an initial consultation about how you could best structure and protect assets that you have worked so hard to maintain for your loved ones to enjoy for years to come.