Frequently asked questions
A list of commonly asked questions are as follows. If you have a specific area that you are interested in, please contact us.
- 1What happens if I don't have a will?
There are important and potentially adverse consequences regarding a deceased person’s estate if they die without a will in place (eg legislation will dictate how their assets are dealt with, and the estate may attract potentially significant extra costs).
- 2What is a testamentary trust will?
Two common types of wills are simple wills and testamentary trust wills. Under a simple will, an inheritance usually passes outright to a beneficiary, whereas this is not the case for a testamentary trust will (as the inheritance may be for the benefit of the beneficiary under a testamentary trust will, but it does not pass to them outright). Testamentary trust wills are often desired for asset protection and tax effectiveness. The usual considerations for such trusts include:
- beneficiaries (eg children) with a disability;
- vulnerable children;
- spendthrift children;
- children later involved in a family law breakdown (eg divorce or the end of a de facto relationship);
- continuity of an inheritance through the presence of a trust; and
- postponing vesting of the trust until an opportune time.
As a testamentary trust will involves the creation of a trust, it is necessarily more complicated than a simple will.
- 3Does superannuation form part of my will?
Not necessarily. Superannuation might never pass through your will and touch your estate. This is because the superannuation trustee may pay it directly to one or more of your dependants. This is a complex area requiring specific advice for your circumstances.
- 4Does an existing trust form part of my will?
Most likely no. An existing trust has its own independent existence and therefore it will usually continue irrespective of your death. The possible connection with your will may relate to key roles played within that trust – eg trustee or controller roles. This is a complex area requiring specific advice in each instance.
- 5Can my estate be challenged if I die?
Yes. Each Australian state or territory has their own legislation in this area. There is a certain category of people that can possibly claim against an estate. This is a complex area requiring specific advice.
- 6Where can I get general information on powers of attorney?
- 7Where can I get information on powers of medical guardianship?
For information on NSW powers of medical guardianship (for personal and medical decisions on my behalf), see: www.gt.nsw.gov.au. For information on interstate powers of medical guardianship, please contact us.