Wills + Estate Planning
Wills Lawyer - Estate Planning Lawyers Townsville
Our experienced Wills and Probate lawyers are dedicated to giving the best possible estate planning advice.
We have fixed fee prices for Wills which include advice on the type of Will and other necessary documents you should have to protect your estate and provide for your loved ones.
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Estate Planning Documents - The 3 documents you should have in place before you die.
1. A Carefully Drafted Will
If you are over 18, have property, family and loved ones, you should definitely have a Will.
A Will enables you to provide for your family, children, friends, charities, etc. and ensures your assets are left to 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 and thoughtfully prepared Will is a great gift to your loved ones as it minimises stress and uncertainty at a time of great sadness and grief.
Most people wish to ensure their estate passes to family and loved ones without any grievances. If you don’t have a Will, you will die ‘intestate’ which means intestacy laws dictate who receives assets from your estate. This could result in your assets being left to people you don’t intend and loved ones missing out. It can also mean stamp duty and taxes are levied when they could have been avoided. People who don’t have a Will, usually leave a stressful mess for their family, at a time when they least need it.
We recommend Wills and all estate planning be attended to by an experienced Wills and Estate/Probate lawyer. We never recommend DIY Will kits that are sold online or at the Post Office and we never recommend using the Public Trustee to prepare your Will. These are fraught with issues which leave your estate vulnerable to uncertainty and heartache, along with escalated and protracted estate administration.
A valid Will has many specific requirements which are set out in the Succession Act. They include things like: ensuring the testator has the capacity to make a Will (which a Lawyer can do); and having 2 witnesses to you signing your Will - both who are present at the same time and neither can be beneficiaries. It is also worth obtaining advice from an experienced lawyer if you are considering leaving out a family member (eg a child). This may have ramifications you should be aware of.
If your will is not carefully prepared, it may be compromised and after your passing and may not be valid which will be expensive, time consuming and stressful for loved ones.
Types of Wills
Standard Wills
For most people, a Standard Will is all that is needed. This is a basic Will with no complicating circumstances. Sometimes people need a Standard Will with one or two complex provisions.
If you are a married couple with a home, perhaps 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 for you.
The Will becomes more involved and takes longer to advise on and prepare if you have children from a first and second relationship and specific provisions need to be drafted to provide for a blended family or provisions to cater to things like: unequal distributions, rights to reside, options to purchase, conditional gifts, or the Will provides a number of specific gifts.
In this situation the Will may cost more as it takes time to draft specific clauses.
Standard Wills are priced from $1,210 for a Single and $1,980 for a Couple.
We include a FREE Enduring Power of Attorney* with every Will we prepare. (*normally $440 extra)
Testamentary Trust Wills
If you have substantial assets along with company and trust structures, and maybe a Self-Managed Super Fund, estate planning becomes more complex and you would likely benefit from a customised Testamentary Trust Will. These types of Wills are designed to ensure asset protection for your beneficiaries, and tax management for your loved ones on your passing. They require an experienced lawyer with an understanding of Succession, Company and Trusts law.
These Wills require a thorough examination of your Company and Trust documents and overall structure. Fees are discussed in detail at your first appointment so there are no surprises.
Fees for Testamentary Trust Wills About Testamentary Trust Wills
Comparing prices for Wills
If you are calling around to compare prices, ensure you compare apples with apples. When we draft your Will, it is prepared by an experienced Wills Lawyer who will spend as much time with you as necessary to thoroughly answer all of your questions. Also, our prices include an Enduring Power of Attorney.
When we prepare your Will, we prepare your Enduring Power of Attorney document for FREE.
2. Everyone should have an Enduring Power of Attorney
An Enduing Power of Attorney is a legal document that is essential.
Everyone should have one of these. An 'EPA' allows you to appoint someone to make decisions about your assets, for example, your business, real estate and bank accounts and your health. It allows you to nominate someone (or more than one person) you trust to act on your behalf. And most importantly, the document will endure and be effective even if you lose capacity and are unable to make decisions for yourself.
It is critical to have an Enduring Power of Attorney document prepared before you lose capacity.
Often, a married couple will appoint each other as an enduring attorney. Sometimes they will appoint their spouse and an adult child.
Our Gift to You
At O'Shea Dyer Solicitors, we think this document is so important, if we prepare your Will, we prepare an Enduring Power of Attorney Document for you for FREE.
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3. A Superannuation Binding Death Benefit Nomination
Superannuation is not regarded by the law as an estate asset. On your passing, it doesn't automatically flow to your estate. The trustee of your super fund will generally pay a death benefit in accordance with the governing rules of the fund and relevant law. A Binding Death Benefit Nomination is a way to override this trustee discretion and ensure your super goes exactly where you want it to go.
A Superannuation Binding Death Benefit Nomination is a legally binding nomination form that allows you to advise the trustee of the super fund, who is to receive your super benefit when you die. Usually, for the notice to be valid you must nominate a dependent to receive the death benefit. Sometimes you can nominate one dependent or a number of dependents. (A dependent may be a spouse or defacto spouse, children of any age, etc.) You can also nominate to leave your superannuation to your Estate.
Having an up to date nomination in place gives peace of mind especially if you have multiple beneficiaries who may have a claim on your super. They usually need to be renewed every three years or when your circumstances change.
We charge $220 (inc gst) to prepare an industry Super BDB Nomination.
Read more about SBDB Nominations.
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Advance Health Directive
It may be appropriate for you to have an Advance Health Directive prepared. This is referred to as a 'Living Will' and is a formal way to give instructions about your future health care. It only comes into effect if your mental/cognitive health deteriorates, and you become unable to make your own decisions.
Read more about these.
What is an Executor?
Your executor is the person who will administer your estate and carry out your wishes after you die. They may have to collect assets, pay out debts, arrange your funeral, distribute your estate according to your Will and if necessary, take or defend legal action on behalf of your estate.
You may appoint one primary executor and one substitute executor, or you can appoint more than one primary executor to act jointly if you prefer. They should be people who are able to work together.
Testamentary Trust Wills
Testamentary Trust Wills are for people with substantial assets or for those who want extra control over the distribution of their assets. We usually recommend people have a Will containing a testamentary trust if they have assets exceeding $1 million dollars (excluding superannuation).
Testamentary Trusts are special trusts that are created within your Will. They come into effect after your death and give the Trustee power to make decisions about the distribution of your assets, including how and when to distribute the assets to beneficiaries.
The price of a Testamentary Trust Will depends on entities you have and your asset holding and if you have a SMSF (self managed super fund). Price will depend on the complexity and number of trusts and companies you have and if you have a SMSF.
Testamentary Trust Wills
Fees are from $2500 - $4500 + gst for a Single and from $3500 - $5500 + gst for a Couple.
Why have a Testamentary Trust 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.
Your Last List. Get your affairs in Order.
One of the best gifts we can leave our family is to be organised. Leaving ‘your affairs in order’ is something we can all do and is a bigger gift than you can imagine.
We love what ‘Scott Pape – The Barefoot Investor’ has to say about this. The final chapters in Scott’s book talk about leaving a legacy for your family and having your affairs in order. This is where we can help. If you need a Will, an EPA or any estate planning documents please come and see us. We would love to help you. We encourage you to do it sooner rather than later.
It’s also a good idea to have a LIST of all the information your family will need to know in the event of your death. We call this your 'Last List'. A copy of this list and your important documents such as your Will and EPA need to be left in a safe place.
Keep these in a locked filing cabinet or a small inexpensive safe at home - somewhere where family can find it. If we prepare your Will, EPA or Testamentary Trust, we can keep the original documents in a safe custody packet at out office. If you complete a ‘Last List’ we can put that in your safe custody packet too.
Make sure you download a copy of 'My Last List' to fill out for your family. They will appreciate it more than you can imagine!
Safeguard against your Will being Challenged
Careful estate planning can reduce the likelihood of challenges to a Will.
Always:
- Seek legal advice when making a Will - ensure it is properly drafted and witnessed and your capacity is clear.
- Communicate with beneficiaries - explain your Will to family members so they understand your Will and the reasons behind beneficiary entitlements
- Consider a testamentary trust will - setting up a testamentary trust will or gifting property while you are still alive can provide clarity, structure and flexibility, reducing grounds for legal challenges.
Call us. We would love to assist with your estate planning needs.
For more information about Wills and Estates:
Flinders Street East,
Townsville Qld 4810
PO Box 1405,
Townsville Qld 4810
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