Estate Planning - When should I get this organised?

June 21, 2022

Estate Planning – When should I get this organised?


The time to arrange your affairs is now!

Ensure that your assets are passed to your intended beneficiaries, and protect your assets against predators, creditors, and the tax man (or even provide protection for a beneficiary against themselves).
Don’t let the statutory rules of Intestacy decide the distribution of your assets.
Don’t wait for illness or diminished mental capacity before taking the time to action this important obligation.
Biz Lawyers and Advisory covers a range of protective instruments to give you peace of mind over your Estate Planning including;

  • A Will (note: not all assets are automatically covered by your Will).
  • Intestacy.
  • Testamentary Trusts.
  • Power of Attorney.
  • Enduring Guardianship.
  • Advanced Health Care Directives.
  • Family Provisions Claims.
  • Probate Administration.

A question to consider – What Are the Consequences of Dying Without a Valid Will?

Did you know that 52% of adult Australian’s (approx. 9.9million people) don’t have a will – or if they do, it has not been updated in many years and may no longer be valid?

So, what are the consequences of dying without a will? If a person dies without a will, or without naming an executor in a valid will, or where an executor is unwilling or unable to act – this person is known as dying ‘intestate’. In these circumstances the statutory rules of Intestacy will apply leaving the distribution of the estate out of your hands.


A Will is an essential Estate Planning document that appoints your personal legal representative (executor – empowered to administer your estate, including the collection of assets, payment of debts and asset distribution) and names your beneficiaries.

DIY Will kits may seem attractive from a cost viewpoint, however, if errors are made the document could be invalid, resulting in the estate, which you have built over a lifetime, being distributed against your wishes but according to the statutory rules of intestacy.


A testamentary discretionary trust protects your beneficiaries from creditors, predators, and the tax man. A trust can also offer protection to a vulnerable beneficiary, possibly against themselves.

A testamentary discretionary trust is established by the terms of your will and gives flexibility as to how and when your beneficiaries receive the benefits from your estate, whilst minimising any applicable taxation consequences for them, or possible claims on their inheritance due to a marital breakdown or business failure.

A testamentary trust is discretionary and provides power to the trustee to hold the assets based on your instructions and can also be protective for a beneficiary (due to age, disability or other circumstance).


Research by the NSW Trustee and Guardian shows that 85 per cent of adults with ageing parents DO EXPECT to be involved in decision-making for them at some point if required.


A Power of Attorney allows you to grant a person of your choosing legal authority to make important legal and financial decisions on your behalf, in private affairs, business, or other legal matters.

GENERAL POWER OF ATTORNEY: gives your attorney the authority to make decisions about financial and legal matters on your behalf whilst you maintain capacity and ceases to operate if capacity is lost (determined by a medical doctor).

ENDURING POWER OF ATTORNEY: these powers continue with the Guardian once capacity to make your own decisions is lost and cannot be revoked even after you lose mental capacity.


If a person dies without a will, or without naming an executor in a valid will, or where an executor is unwilling or unable to act – this person is known as dying ‘intestate’. In these circumstances the statutory rules of Intestacy will apply leaving the distribution of the estate out of your hands.

The legal process to administer an intestate estate is initiated through an application to the Supreme Court for a ‘Grant of Letters of Administration’, within 6 months from the date of death. This ‘Grant of Letters’ then allows for the administration of the deceased’s estate in accordance with the laws of intestacy.

Applying for a Grant of Letters of Administration can be a complex process.

Once granted the Letters empower the administrator to collect the deceased’s assets by taking the grant to persons that may currently have assets of the estate, or that are debtors of the estate (including banks and retirement villages that are holding bonds) requiring them to transfer the assets or monies to the administrator.

Once the assets are ‘gathered in’ the administrator must pay any debts of the estate, followed by distribution of the assets to the beneficiaries in accordance with the statutory rules of Intestacy.

Generally only persons with legal ‘standing’ can apply for administration of a deceased’s estate.


An Enduring Guardianship is a formal legal document that allows you to appoint someone to make decisions on your behalf relating to lifestyle and medical issues (when your decision-making capacity becomes impaired). Examples include determining which hospital or doctors to seek treatment from, euthanasia options or simply deciding where you should spend your retirement years.


An Advanced Health Care Directive records your directions for your medical treatment (or refusal of such) post a sudden accident, dementia, stroke or in the event you fall into a coma or similar condition. Health professionals and family members have no authority to override your valid Advanced Health Care Directives.


  • Have you been left out of a will?
  • Have you received less than you were entitled to?
  • Was your proper maintenance and support, the education required for the advancement of your life, even your financial need not adequately provided for from your loved one’s estate?

Then you may be able to challenge that will and make a Family Provisions Claim.

Unless resolved by agreement of the parties prior to a hearing, all claims for family provision are determined by a Judge of the Supreme Court, who may make alterations to the Will and distribute the deceased’s estate in your favour.

Persons eligible for a Family Provisions claim within the meaning of S57 of the Succession Act 2007 (NSW) include (but are not limited to):

  • Spouses and de-facto partners
  • Former spouses and de-facto partners
  • Dependents of the deceased (wholly or partly)
  • Children and Adopted children
  • Grandchildren of household members

Common examples of a Family Provisions claim include (generally after a late change or unexplained exclusion from a Will):

  • disputes as to whether the will-maker had testamentary capacity at the time of making the will.
  • allegations of undue influence.
  • disputes between multiple executors, or executors and beneficiaries.
  • executors’ commission disputes.
  • where an unfair distribution has been made
  • where some beneficiaries receive more than their fair share
  • arguments regarding the correct interpretation of the will.

For a Family Provision claim to be successful, the judge is likely to rely on various factors such as:

  • Your relationship with the deceased.
  • Whether there are any ensuing obligations or responsibilities that the deceased owes to you.
  • Any contributions you have made to the deceased’s estate value.
  • Whether you have any physical, intellectual or mental disabilities.
  • Your financial circumstances and your age.
  • The size and value of the estate.
  • Your level and dependence on the deceased.
  • Presence of any other person responsible to support you.
  • Any other relevant factors that the court may consider relevant.

Conclusion – make a will and make it valid

The importance of specialist advice in Estate Planning is clear.
For a free, no obligation review of your current Will or to discuss your Estate Planning requirements, simply pick up the phone or email us.
Call us now: 1800 893 836
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Drop us a call for a free initial consultation today!


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