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Wills and Estate Planning Documents

If you are over 18, have property, family and loved ones, you should definitely have a Will. You should also have an Enduring Power of Attorney and a Superannuation Binding Death Benefit Nomination. 

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Why Have a Will?

A Will enables you to provide for your family, children, friends, charities, etc.  Your Will ensures your assets are left the people you intend them for. Your Will lets everyone know how you want your Estate to be distributed when you pass away.  A carefully prepared Will is a great gift to your loved ones as it minimises stress at a time of great sadness and grief.

Most people want to make sure their estate passes to family and loved ones without any hassle. If you don’t have a Will, you die ‘intestate’ and intestacy laws will dictate what happens. This can result in your assets being left to people you don’t intend.  It can also mean stamp duty and taxes are levied when they could have been avoided.  If you don’t have a Will, you usually leave a big mess and a lot of stress for your family at a time when they least need it.

We never recommend DIY Will kits that are sold online or at news agencies. We never recommend people having a Will prepared by the Public Trustee.

A valid Will has many specific requirements which are set out in the Succession Act. They include things like: You must have the capacity to make a Will; There must be 2 witnesses to you signing your Will who are present at the same time who cannot be beneficiaries.   If your will is not carefully prepared, it may be compromised and after your passing, it will be more expensive, time consuming and difficult to administer your estate. 

Types of Wills

There are different types of Wills. For most people, a Standard Will is all that is needed. Standard Wills are priced from $660 for a Single and $1100 for a Couple. We also include a free Enduring Power of Attorney when we do your Will.

If you are a happily married couple and you have a home, maybe an investment property and personal effects like cars and furniture, and you wish to leave everything to each other and then to your kids, a Standard Will is what you need.  

The Will gets more involved and takes longer to prepare if you have children from a first and second relationship and there are specific provisions that provide for a blended family, or if you have a number of specific gifts you wish to make provision for. In this situation the Will may be a little more expensive to prepare as it takes longer to draft specific clauses.

If your net worth is more than a million dollars (excluding your Super) you may need to set up a Testamentary Trust in your will. Or maybe you have circumstances where you don’t want your children to receive all their money at once. For example, you may wish to provide some asset protection because one of your children is bankrupt.  Sometimes people have a child who is not able to manage money and you want to drip feed it to them rather than leave a lump sum. In these situations, a Testamentary Trust Will may be best for you.

Testamentary Trust Wills

A testamentary trust is a Trust created within your Will that comes into effect after your death. It gives the Trustee’s discretion (power) to decide how and when to distribute assets to the beneficiaries. Testamentary Trust Wills are priced from $2200 for a Single and $3300 for a Couple. We also include a free Enduring Power of Attorney when we prepare your Will.

People who have substantial assets often find it very beneficial to set up a Trust in their will.  There are two main reasons for this.  

Firstly – The Trust minimises the tax that beneficiaries will have to pay when they receive assets or money. Any income, capital gains and dividends can be distributed to your beneficiaries each year in the most tax-efficient way. Also, distributions can be made to minors under the age of 18, tax free (up to the marginal rate).

Secondly – You can protect your loved ones and your assets. You may have a child who has an addiction and the last thing you want to do is leave them a large sum of money. A Trust can drip feed money to them. If you have a child with a risky business that may go bankrupt or a child with special needs, you probably don’t want to leave them a large sum of money 'all at once' as they may not manage the money well.  If you have a child whose marriage is uncertain, you may wish to ensure money passes to your child and not to their ‘ex’ if a divorce is pending.  A Will which includes a Trust, gives flexibility to the Trustees to decide how and when to distribute money.  

As a Testamentary Trust Will is specific to your situation and can be quite complex, it takes considerable time to prepare.  Naturally, it costs more than a straightforward Will. There are also some costs involved in the administration of the Trust once you pass away as your estate needs to maintain and administer the Trust.  

For more information about

Wills and Estates:

Download our Wills and Estates Flyer

Wills and Estates Succession Lawyer townsvilleKrystal Potrzeba

Senior Associate

Wills & Estates Lawyer


Ivan Baxter

Director of O'Shea Dyer Solicitors

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