Estate Planning Lawyers in Melbourne & Mt Waverley

Every estate plan should reflect the circumstances of the person making it. At HOCW, we work with individuals, families and business owners across Melbourne and Mount Waverley to prepare estate-planning arrangements that consider both what happens after death and who can make decisions if capacity is lost.

Your plan may include a will, testamentary trust provisions, an enduring power of attorney, an appointment of medical treatment decision maker and superannuation death-benefit nominations. The documents that are appropriate will depend on your family structure, assets, business or trust interests, and personal wishes.

Estate planning can be particularly important for people with children, blended families, property or investment portfolios, self-managed super funds, family trusts, companies, or a beneficiary who may need additional support.

Wills

A will sets out how you want your estate dealt with after your death. It can appoint an executor, direct how assets are distributed, make specific gifts, provide for beneficiaries and record wishes about guardianship for minor children.

A properly prepared will helps reduce uncertainty for the people you leave behind and allows your estate to be administered according to your intentions. We advise on wills for straightforward and more complex personal, family and business circumstances.

What should a will cover?

A will commonly identifies the person or people you appoint as executor, names the beneficiaries you wish to provide for and explains how assets are to be distributed. It may also include specific gifts, substitute beneficiaries if someone dies before you, directions relating to personal possessions and provisions for children.

If you have children under 18, a will may express your wishes about who should act as their guardian. If you own a business, hold assets through a company or trust, or have a more complex family structure, your will may also need to operate alongside business-succession arrangements, trust documents, superannuation nominations and other legal or financial planning.

When should you update your will?

You should review your will whenever your personal, family or financial circumstances materially change. This may include marriage, separation, divorce, entering a new relationship, having children, buying or selling property, receiving an inheritance, starting or selling a business, or changes to superannuation and insurance arrangements.

It can also be sensible to review your will if an executor, attorney, guardian or beneficiary dies, becomes unable to act, or is no longer an appropriate choice. Regular reviews help ensure your documents continue to reflect your intentions and work with your current asset and family arrangements.

Testamentary trusts

A testamentary trust is a trust created under a will that begins after death. Instead of an inheritance passing directly to a beneficiary, assets can be held and managed by a trustee for that beneficiary in accordance with the terms of the will.

Testamentary trusts can offer greater flexibility and control over how an inheritance is managed. Whether they are appropriate depends on your family circumstances, the nature and value of your assets, your succession objectives and the needs of your intended beneficiaries.

Do I need a testamentary trust?​

A testamentary trust is not necessary for every estate plan. It may be worth considering where you want an inheritance to be managed over time, where beneficiaries are young or vulnerable, or where you are concerned about how a direct inheritance could be affected by family, financial or personal circumstances.

A testamentary trust may also be relevant for people with substantial assets, business interests or a blended family. We can advise whether the additional structure, administration and ongoing obligations are proportionate to your circumstances and estate-planning objectives.

When may a testamentary trust be appropriate?

A testamentary trust may be considered where you want to provide for:

• Young children or grandchildren who may not be ready to manage a significant inheritance

• A beneficiary with a disability, illness or other vulnerability

• A beneficiary experiencing financial difficulty or exposure to creditor claims

• A beneficiary whose relationship circumstances may create uncertainty around an inheritance

• A blended family, where you want to balance the needs of a spouse or partner with children from a previous relationship

• A family with business, company or trust interests requiring coordinated succession planning

The benefits and suitability of a testamentary trust depend on the individual circumstances. Legal, financial and tax advice may be needed to ensure the arrangements work as intended.

Enduring powers of attorney

An enduring power of attorney allows you to appoint a person, or more than one person, to make financial and personal decisions for you if you lose the capacity to make those decisions yourself. It is an important part of planning for unexpected illness, injury or age-related incapacity.

You can specify the powers you give, when those powers begin and whether your attorneys must act jointly, separately or in another agreed arrangement. Choosing an attorney is a significant decision: the person should be trustworthy, capable and willing to act in your interests.

We can help you understand the authority being granted and prepare documentation that reflects your wishes and circumstances.

Medical treatment decision makers

An appointment of medical treatment decision maker allows you to nominate someone to make medical treatment decisions for you if you are unable to make those decisions yourself. This appointment is separate from an enduring power of attorney and focuses specifically on medical treatment decisions.

Your chosen decision maker should understand your values and be willing to communicate with health practitioners and make decisions in accordance with your preferences. You may also wish to consider an advance care directive as part of broader planning for future medical care.

We can advise on how an appointment of medical treatment decision maker fits with your wider estate and incapacity plan.

Superannuation and death-benefit nominations

Superannuation and life-insurance benefits held through a super fund may not automatically be dealt with under your will. Depending on the fund rules and the nomination you have made, a death benefit may be paid to your estate or directly to an eligible beneficiary.

Reviewing your superannuation arrangements alongside your will is important, particularly where you have a blended family, adult children, significant superannuation, a self-managed super fund, or a change in relationship or financial circumstances.

Does superannuation form part of your estate?

Not always. Superannuation is generally held by the trustee of your super fund, which may decide how a death benefit is paid unless you have made a valid binding nomination or another effective direction under the fund’s rules.

In some cases, superannuation may be paid to your legal personal representative and then dealt with under your will. In other cases, it may be paid directly to an eligible dependant or nominated beneficiary. The appropriate arrangement depends on your fund, nomination, family circumstances and broader estate plan.

We can work with your financial adviser or accountant, where appropriate, to help ensure your estate-planning documents and superannuation arrangements are considered together.

When should you review your estate plan?

Estate planning should be reviewed throughout life, not treated as a document you complete once and put aside. A review is particularly worthwhile after a significant change to your family, assets, health, business or retirement arrangements.

Consider reviewing your estate plan if you marry, separate, divorce, have children, enter a blended family, buy or sell property, establish or restructure a business, create a trust, receive an inheritance, experience a serious health event, move interstate or change your preferred executor, attorney or medical treatment decision maker.

It is also sensible to conduct periodic reviews even if there has been no obvious change, particularly where your documents are several years old.