Wills & Estate Planning

TLS can help you create a will that protects your wishes

Protect your legacy with Perth’s leading Wills & Estate planning lawyers

A Will is a legal document that sets out how you wish to dispose of your estate after your death.

Your estate is comprised of assets owned by you solely. Therefore, your estate excludes:

  • Assets that are owned jointly with another person – your interest in these assets will cease upon your death and the surviving joint owner’s interest in such assets will be enlarged.
  • Assets held by a discretionary trust (colloquially known as a “family trust”) that you control – these assets will continue to be held by the trustee of the discretionary trust after your death. You will need to review your discretionary trust deed to determine who will take over the positions of control after your death.
  • Assets owned by a company you control – these assets will continue to be owned by the company. However, any shares that you own in such company will form part of your estate.
  • Superannuation – your superannuation is held by the trustee of the superannuation fund on your behalf. Members of superannuation funds may make a “binding death benefit nomination” to nominate a beneficiary of their accrued superannuation and any life insurance policies attached to their superannuation policy, collectively referred to as “death benefits”.

You may also set out other important matters in your Will, such as:

  • Leaving property with conditions attached to it, such as rights to purchase or life estate interests;
  • Nominating a guardian for your minor children;
  • Nominating a caregiver for your pets;
  • Making a payment to your Executor;
  • Making a gift to a charity;
  • Forgiving a debt owed to you; and
  • Whether you wish to be cremated or buried.

There are two types of Wills that TLS may prepare for you:

  1. ‘Simple’ Wills, where your beneficiaries receive their entitlements absolutely; or
  2. ‘Smarter’ Wills, where your beneficiaries may choose whether to receive their entitlements absolutely or in a testamentary discretionary trust, which has the benefits of asset protection and income streaming, further discussed below.

Testamentary Discretionary Trusts

If one of your beneficiaries is:

  • The subject of an insolvency event;
  • A party to Family Law proceedings;
  • A foreign resident for Australian taxation purposes; and/or
  • A high-income earner who does not wish to increase their taxable income,

they may benefit from the option to receive their entitlements under your Will in a testamentary discretionary trust.

In the case your beneficiary is the subject of an insolvency event, any assets held in a testamentary discretionary trust will not be accessible to creditors.

In the case your beneficiary is a party to Family Law proceedings, any assets held in a testamentary discretionary trust, of which the beneficiary is not in control of, are arguably not assets that should be included in the family asset pool to be divided between the beneficiary and their former spouse.

In the case your beneficiary is a foreign resident for Australian taxation purposes, the transfer of any assets to a testamentary discretionary trust will not be treated as a ‘disposal’ for capital gains tax purposes.

In the case your beneficiary is a high-income earner, any income earned on assets held in a testamentary discretionary trust may be streamed to the beneficiary’s family to reduce the beneficiary’s taxable income.

As discussed above, our ‘Smarter’ Wills provide your beneficiaries with the option to receive their entitlements absolutely or in a testamentary discretionary trust. This decision will be made by your beneficiaries after taking appropriate legal, taxation, financial and other professional advice and having regard to their circumstances at the relevant time.

TLS Wills and Estates

Beneficiary Support Trusts

If one of your beneficiaries may be unable to properly handle their own financial affairs, you may consider directing their entitlement under your Will to be held and applied by the Executor upon a trust (“Beneficiary Support Trust”) for the protection, maintenance, care, support, education and general advancement in life of such beneficiary.

This will ensure the beneficiary will have no direct or indirect control over, or access to, any of the assets or income of the Beneficiary Support Trust.

If the Executors consider it to be appropriate, they may also administer the Beneficiary Support Trust on that basis that it is a special disability trust. This will preserve any gifting concession, assets test assessment exemption and other concessions and benefits applicable to special disability trusts.

Enduring Powers of Attorney (EPAs) and Enduring Powers of Guardianship (EPGs)

Your Will takes effect after your death. As part of your estate planning, you may wish to instruct us to prepare an EPA and/or EPG for you, which take effect during your lifetime.

Please refer to Enduring Powers of Attorney and Enduring Powers of Guardianship pages for further information.

How we can help

Our experienced team at TLS may assist you by:

  • Providing advice to you and tailoring your Will and estate plan to your specific circumstances and goals.
  • Preparing a valid Will to dispose of your estate, ensuring your estate will be distributed in accordance with your wishes, not in accordance with the laws of intestacy.
  • Ensuring your Will complies with the formal requirements of Part 3 Section 8 of the Wills Act 1970 (WA).

Need help with your will?
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