Wills & Estate Planning Lawyers, Melbourne

Why estate planning matters

An estate plan determines how the assets you have spent a lifetime accumulating pass to the people and causes you care about. Done properly, it reduces the cost, delay and family tension that follow a death; done casually, it can produce the opposite. A do-it-yourself will or a generic online template often fails on the most common Australian fact patterns — blended families, jointly held property, superannuation, family trusts, business interests — and the cost of correcting those failures is borne by the estate, not the drafter.

Our role is to translate your circumstances and intentions into instruments that hold up under the Wills Act 1997 (Vic), the Administration and Probate Act 1958 (Vic), the Trustee Act 1958 (Vic), the SIS Act and the case law that surrounds them.

What we prepare

• Wills — from straightforward wills through to complex multi-beneficiary structures, including specific gifts, charitable bequests and guardianship appointments for minor children.
• Testamentary trust wills — discretionary trusts established by the will, used to provide income-splitting, asset protection and long-term stewardship for beneficiaries.
• Mutual and mirror wills — coordinated wills for spouses and partners, with appropriate protections where there are children from prior relationships.
• Enduring Powers of Attorney (financial and personal) under the Powers of Attorney Act 2014 (Vic).
• Appointments of Medical Treatment Decision Maker and advance care directives under the Medical Treatment Planning and Decisions Act 2016 (Vic).
• Supporting documents — statutory declarations of intention, letters of wishes, trustee memoranda, and binding death benefit nominations for superannuation.

Testamentary trusts — when they are worth it

A testamentary trust is a discretionary trust established by your will and brought into existence on death. The trustee — often a surviving spouse, an adult child, or a professional — holds estate assets for a class of beneficiaries you nominate. The advantages are real but they are not universal: tax-effective distribution of trust income to minor beneficiaries at adult marginal rates under section 102AG of the Income Tax Assessment Act 1936; meaningful asset protection where a beneficiary faces bankruptcy or family law proceedings; and the ability to defer outright distributions to young or vulnerable beneficiaries.

They suit estates with investment assets, blended-family dynamics, a beneficiary with creditor exposure, or beneficiaries with disability (where a Special Disability Trust may be the right vehicle). They are not always justified for modest estates whose assets will be consumed by a surviving spouse in any event. We will tell you which you are.

Business succession

For business owners, estate planning runs alongside — not separate from — the corporate and trust structures that hold the business. We work through the shareholder agreement, the unit-holders' deed, the discretionary trust deed and any partnership agreement to make sure that what your will purports to give away is actually yours to give. Where appropriate we coordinate buy-sell agreements funded by life insurance, succession of trusteeship and appointorship of family trusts, and the orderly transition of company shares so the business survives the proprietor.

For professional service firms, family enterprises and closely held companies, we also address the question of control as distinct from ownership — who steps into the role of appointor of the family trust, who replaces a sole director on death, and who is empowered to act in the immediate days before probate is obtained. Without those steps the business can be functionally paralysed at exactly the moment continuity matters most.

Superannuation death benefits

Superannuation does not automatically form part of your estate. It is paid by the trustee of the fund in accordance with the trust deed, the SIS Act and any binding nomination you have made. A binding death benefit nomination — lapsing or non-lapsing depending on the fund — directs the trustee, but only if it is valid in form and substance at the date of death. We review your existing nominations, identify the SIS dependants you may pay to, and where it suits the plan we draft nominations that direct benefits into the estate so they flow through the will (and, where used, into a testamentary trust). For self-managed superannuation funds we also address fund control on death of a member: who becomes trustee, who controls the corporate trustee, and whether the existing deed permits a non-lapsing nomination at all.

Where the superannuation balance is significant, the tax consequences of paying a benefit to a non-tax-dependant adult child (the "taxable component" tax) often drive the structure of the wider estate plan. We model those outcomes with you and, where appropriate, coordinate with your accountant so that the death benefit, the will and any testamentary trust work together rather than in opposition.

Blended families

The single most common cause of contested estates in Victoria is the tension between a surviving spouse and the children of a prior relationship. The right answer is rarely a simple "everything to my spouse, then to the children" will, which depends on the survivor keeping the agreement after the testator is no longer in a position to enforce it. We work through life-interest provisions, rights to occupy the family home, capital-protected legacies for children, and mutual wills where each spouse intends to bind the other. We also advise frankly on the risks of a claim under Part IV of the Administration and Probate Act 1958 (Vic) so the estate plan anticipates, rather than invites, dispute.

Our approach

Initial estate planning conferences are conducted in our Collins Street office or, where it suits, by telephone or video. We discuss scope and fees at the outset, in writing, before substantive work begins. Most plans are completed across two appointments — the first to take instructions and identify the issues; the second to execute the documents after you have had time to review the drafts. We maintain the original signed documents in our safe custody at no cost to you, and we are happy to liaise with your accountant, financial adviser or SMSF administrator where the plan involves their work.

What to bring to a wills appointment

• Photographic identification (driver licence or passport).
• Any existing will, EPOA or medical-treatment appointments.
• A summary of significant assets and liabilities, including jointly held property.
• Superannuation fund names, balances and existing nominations.
• Names, addresses and dates of birth of intended executors, attorneys, guardians and beneficiaries.
• Trust deeds, shareholder agreements or partnership agreements for any business interests.
• A note of any prior marriages, domestic partnerships, or dependants who might claim against the estate.

Reviewing an existing estate plan

An estate plan is only current for the circumstances in which it was made. Marriage, separation, the birth of a child, the sale of a business, the acquisition or refinancing of property, changes to superannuation, or the death or incapacity of a nominated executor, attorney or beneficiary can each render an otherwise well-drawn plan obsolete. We recommend reviewing your will, powers of attorney and superannuation nominations at least every three to five years, and whenever a life event of that kind occurs. Where existing documents remain fit for purpose we say so; where they do not, we advise on the least intrusive way to update them.

How Hanlons can help

We advise Victorian individuals, couples, business owners and SMSF trustees on wills, testamentary trusts, enduring powers of attorney, appointments of medical treatment decision maker, superannuation death benefit nominations and coordinated business succession. Initial conferences are conducted at our Collins Street office or by telephone or video, and scope and fees are agreed in writing before substantive work begins.

Frequently asked questions

Related services and reading

Most estate planning matters connect to work we handle elsewhere in the firm. When the time comes we also assist with probate and deceased estate administration, and with disputes brought against estates through contested wills and TFM claims. Property held in your own name can be reviewed at the same time through our property and conveyancing practice, and business owners often coordinate estate planning with business succession planning. Further reading: Probate in Victoria — Executor's Guide, Letters of Administration in Victoria and the Administration and Probate Act guide, and Powers of Attorney in Victoria.