Wills & Estate Planning Sydney

Dying without a valid will means you are dying intestate, and your estate will be handled according to intestacy rules under the Succession Act 2006 (NSW). This means your assets will be divided among your legal spouse, de facto partner, children, or other eligible relatives, such as siblings or parents, in a fixed order. Without clear instructions, the NSW Trustee and Guardian may step in to administer your estate. To avoid this, creating a new will ensures that your wishes are clearly documented and your assets are distributed immediately according to your preferences.

Under NSW law, specific individuals, including a legal spouse, de facto partner, children, or other eligible beneficiaries, may contest a will by filing a family provision claim in court. The claim must demonstrate that the deceased had an obligation to provide for the claimant and failed to do so adequately. If testamentary capacity is in question, the NSW Trustee or court may intervene to assess the validity of the will. Proper planning with clear legal documents can help minimise the risk of successful challenges.

Testamentary capacity refers to a person’s ability to create a legal document like a will. The individual must understand the nature of the document, know the extent of their assets, and consider the interests of their legal spouse, de facto partner, and other eligible beneficiaries. Without this capacity, the NSW Trustee and Guardian or the Supreme Court may declare the will invalid. To ensure your Will stands up to scrutiny, working with a wills and estate planning lawyer and documenting your testamentary capacity during the drafting process is crucial.

Establishing a testamentary trust in your Will is an effective way to provide for young or vulnerable beneficiaries. The trust can ensure assets are distributed gradually or under specific conditions, protecting them from poor financial decisions, creditors, or disputes. Appointing a first executor, such as a trustee company or a family member, to manage the trust ensures proper oversight. Additionally, using enduring guardianship documents and a power of attorney for financial management can help safeguard the interests of your dependants during your lifetime.

Superannuation and life insurance are not automatically included in your estate unless explicitly directed by a legal document like your will or a binding death benefit nomination. If no nomination exists, the NSW Trustee or the trustee of the superannuation fund decides how the funds are distributed. This decision may not align with your wishes. Proper coordination between your new will, power of attorney, and other estate documents ensures these assets are distributed as intended.

An executor manages the administration of your estate, including locating the original will, obtaining grant probate, paying debts, and distributing assets to beneficiaries. You can appoint more than one executor, such as a legal spouse or a de facto partner, to share responsibilities. However, it is important to choose individuals who can work together effectively, as disputes between co-executors, such as the first executor and the other executor, may delay the process. Clear instructions in your will and the support of the NSW Trustee and Guardian can ensure smooth administration.

You should create a new will or amend your estate plan whenever your circumstances change, such as through marriage, divorce, the birth of a child, or acquiring significant assets. Under NSW law, marriage revokes a legal document like a will unless it explicitly states it was made in contemplation of marriage. Similarly, divorce revokes provisions in favour of a legal spouse. Regular reviews ensure your estate plan reflects your current wishes, prevents disputes, and avoids dying intestate.

Enduring guardianship and power of attorney are both crucial components of estate planning but serve different purposes. Enduring guardianship documents appoint someone to make personal and medical decisions on your behalf, such as choosing healthcare treatments or a nursing facility if you lose capacity. In contrast, a power of attorney focuses on managing financial and legal affairs, such as paying bills or selling property. Together, these legal documents provide comprehensive coverage for your well-being and estate management.

Estate administration involves tasks like locating the original will, obtaining grant probate, paying debts, and distributing assets. The time required depends on the complexity of the estate and whether disputes arise. A straightforward estate with clear instructions in one document may be settled within six months, while cases involving multiple beneficiaries, disputes, or a family provision claim may take longer. Working with the NSW Trustee and Guardian or a skilled wills and estate planning lawyer ensures efficient and accurate administration.