ESTATE PLANNING - WILLS

Esposito Lawyers provides holistic advice on estate planning for wills and power of attorneys.  The delivery of these service includes either in-house appointments or the option of electronic communication via mail/email/skype ot telephone.

Our will advice and drafting services include, but are not limited to;

  • Testamentary trusts;
  • Options to purchase;
  • Specific gifts, family bloodline gifts, gift overs;
  • Guardian provisions;
  • International wills (with countries who have signed the convention);
  • Business/company directions and appointments;
  • Forgiveness and release of debts;
  • Pecuniary legacies;
  • Residuary/life interests;
  • Advice on Family Provision Application Legislation; and
  • Powers.

When drafting a will it is important to obtain advice from a lawyer and consider the application of family provision applications made under the Succession Act 1981 (Qld) to your circumstances.

Making promises or agreements such as agreements to buy/sell, mutual wills, binding financial agreements, partnership agreements need to be considered when drafting your will.  Making promises throughout your life (even those made orally) can impact upon your will being carried out following your death.  It is therefore important for these documents/information to be considered prior to drafting your will.

Testamentary trusts within a will are often used as a mechanism to protect the assets of a trust in circumstances where the beneficiaries work in a high-risk profession, there may be beneficiary creditor issues and in the event of beneficiaries divorce and break down in a relationship.  As a result, testamentary trusts are drafted on an individual needs basis following consideration of a client's outcome expectation, the beneficiaries circumstances now and the possibility of changes to those circumstances in the future.

Our fixed fee pricing for wills includes complimentary completion of superannuation binding death nominations at the time of making your will.

DIY WILL KITS

We are often asked, "why do we need a lawyer to write a will when we can do one online or with a DIY kit."  It's simple right? you just fill out the questions and BOOM you're done.  Unfortunately, that is often not the case. A DIY will can be a very expensive exercise in the long run.

Wills are very complex, while a DIY kit certainly does not make them look complex there is no one size fits all for a will.    When you engage a Lawyer to draft your will you are paying for the advice that goes with the drafting of that will which is specific to your circumstances.   There has been an increasing number of legally invalid or deficient wills that have resulted in legal action before the courts and considerable legal fees being paid by the estate in these litigations.  Issues that can arise from a DIY will include, but are not limited to;

  • Gifting of jointly owned assets that cannot be gifted;
  • Inaccurate or invalid execution of the will;
  • The capacity of the testator;
  • Issues relating to children, taxation, superannuation and executors aren't adequately covered;
  • Incorrect description of gifts;
  • Appointing inappropriate executors;
  • Failure to nominate beneficiaries for the residual estate;
  • Failure to consider family application provisions under the Succession Act  1981 (Qld);
  • The explanation about the distribution of superannuation is ambiguous;
  • The testator failing to dispose of their entire estate leading to a partial intestacy;
  • The testator making handwritten changes to the Will which have not been witnessed or dated.

WHAT HAPPENS IF YOU DIE WITHOUT A WILL

When a person passes away without having a valid will in place, it is known as dying intestate.  When you die intestate your assets are divided in accordance with the Succession Act 1981 or upon application, as otherwise ordered by a Court.

What do you need to bring to your first will appointment? 
To assist you in preparation for your appointment please consider the following information for your appointment;

  • Photographic identification, such as your Driver Licence/ 18+ card;
  • A copy of any previous will/POA made by you (if applicable);
  • A copy of your Marriage/Divorce/Certificate;
  • A copy of your motor vehicle registration/rates notice for your real property assets;
  • The full name/DOB/residential address of your chosen executor(s);
  • The full name/DOB/residential address of your chosen beneficiaries(s);
  • A copy of your superannuation annual statement(s) (most recent) which includes your benefits and customer number;
  • A copy of any Pre-nuptial/Financial Agreements;
  • A copy of any Family/Unit/Discretionary Trusts Deeds;
  • A copy of any Shareholders Certificates.

When should you update a will?

  • Your wishes change;
  • You change your name or anyone named in the will changes their name.
  • If an executor dies or becomes unwilling or unsuitable to act due to ill– health, age or any other reason.
  • If a beneficiary dies.
  • If the family situation of yourself or any beneficiary changes (e.g. marriage, divorce, matrimonial problems, children or further children, de facto relationships).
  • If you become involved in a new business, company or trust.
  • If you take up permanent residence in another State or overseas.