What do I need to know about Wills?

Everyone should have a Will.

O'Shea Dyer Solicitors is on a constant crusade to ensure that everyone has a current, valid Will.

We've acted for many clients over the years who have had loved ones pass without a Will, and others who had an invalid Will.

This has been traumatic and at the least - very stressful for loved ones. It is the last thing someone needs when they are grieving.

We have experienced Wills and Probate lawyers who prepare Wills and Estate documents every day. They can advise on standard and complex situations. We keep our prices reasonable and we always prepare an Enduring Power of Attorney document for FREE when we prepare a Will.

What is an Enduring Power of Attorney (EPA) Document?

Everyone should have a Will. AND everyone should have an Enduring Power of Attorney. An ‘EPA’ is a document where you give someone you trust, authority to make decisions for you. This comes in very handy if you are unavailable or unwell. And it is highly valuable as you get older in circumstances where you are incapacitated. As long as you create an EPA while you are of sound mind, you will have a trusted person who can make decisions for you – even if you no longer have capacity.

Please, DO NOT get your Will prepared by the Public Trustee.

Over the past few years, we have had a number of elderly husbands and wives come to see us after their spouse has passed away.

They had both done their Wills for free at the Public Trustee and agreed to make the Public Trustee an executor in their Will.

They were then locked into using the Public Trustee to administer their loved one’s estate.

The fees charged by the Public Trustee to administer the modest estates were outrageous. And on top of this, the process of tidying up their loved one’s Estate, which should have been relatively quick, took ages. It was extraordinarily expensive, impersonal and stressful. And there was nothing we could do in this situation. The surviving spouse did have a new Will prepared by one of our lawyers so the Public Trustee didn't cause this angst for their beneficiaries when they died.

Do I need a Testamentary Trust Will?

We recommend, if you have assets (excluding Superannuation) in excess of a million dollars, you should consider having a Will that contains a Testamentary Trust.

A Testamentary Trust is a trust created within your Will. You appoint trustees and set out the terms of the Trust in your Will. It is a Trust that comes into effect after your death. It is designed to give the trustee’s discretion and great flexibility to decide how and when to distribute assets/money in your Estate, to your beneficiaries.

There are 2 main advantages to a Testamentary Trust:

1. You can protect your loved ones and your assets.

Usually, people leave the majority of their estate to their children as the main beneficiaries. There are many situations where you may not want your child/adult child, to receive a large lump sum. For example:

• They may not be old enough to manage a large amount of money.
• They have special needs and may not be able to manage a large sum of money.
• They may have an addiction, and it is better to ‘drip feed’ money rather than give a large lump sum.
• They may have a business that borders on bankruptcy.
• They may be in a marriage that is shaky, and you don’t want part of the estate money going to their ‘ex’ if a divorce is pending.

A Testamentary Trust gives a Trustee great discretion to decide how and when to distribute money to your beneficiaries.

2. 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.
• Distributions can be made to minors under the age of 18, tax free (up to the marginal rate).

A Testamentary Trust Will is designed to be specific to your situation and can be quite complex. It takes longer to prepare than a standard Will and naturally, it costs more.

We have experienced Estate lawyers who have prepared many Testamentary Trust Wills for people over the years and our fees are very reasonable.

The best thing to do is to obtain legal advice as to whether you need one and how it can best cater to your situation.

More information on Testamentary Trusts