Succession Wills & Estates Resources

The information provided on this page is general in nature and intended only to provide an introduction to the topic. This information is not to be taken as legal advice. You should not act on any information provided here, without obtaining legal advice first.
We hope you will find the following information helpful.

Q&A topics in this Section:

What is a Will?
What if I don’t have a Will?
Can I write my own Will?
Is that Will I did 15 years ago still OK?
Is a “Legal Will Kit” from the newsagent OK?
Why not get a free Public Trustee Will or ring around for the cheapest quote?
What is a testamentary trust?
What are the benefits of having a testamentary trust in my Will?
My circumstances are simple – what can go wrong?


What is a Will?

A Will is a legal document that sets out how you want your assets to be distributed after you die. Your Will appoints your executor, who is responsible for administering your estate. Wills often set up trusts to preserve assets for intended beneficiaries (e.g. trusts for children under the age of 18).

What if I don’t have a Will?

If you die without a Will, your assets will be distributed between family members according to a set formula. The formula varies for people in different circumstances. For example, if you are married and have children, the first $150,000 of your assets passes to your spouse and the remainder is shared between your spouse and your children. The share passing to children under 18 must be held in trust for them.

Can I write my own Will?

Yes.  But:

  • There are legal requirements for a valid Will – if you get it wrong, it may not be valid.
  • Estate law is complex and often plays out in ways you would probably not think to be fair or make sense.
    You just don’t know what you don’t know and a lot can go wrong!

Is that Will I did 15 years ago still OK?

Maybe. But:

  • Are you sure it is still relevant – have you read it recently?
  • What suited your circumstances 15 years ago may not suit your circumstances now. Maybe your kids have grown up and your parents are too old to act as executor.
  • Between your home, your superannuation and life insurance, your estate may now have substantial value. Further consideration and planning may now be important.
  • Your affairs are now likely to be far more complex. Superannuation, managed investments, business assets or personal trusts all complicate your estate planning.
  • The use of testamentary trusts at a reasonable cost has revolutionised estate planning! 15 years ago they were rarely used except by the wealthy.

OK, you only got here by accident or out of curiosity – like as if a specialist Wills lawyer is going to tell you that a $30 “Legal Will Kit” is alright?!

BUT WAIT! Everything has its place. If you are about to go skydiving and think on the way out:

“#@$&*!!, I forgot to get my Will done!”

Buy a “Legal Will Kit” from a newsagent, read the instructions, fill it out on the car bonnet and make sure it is properly signed and witnessed! Then, (assuming you don’t need it when you get back to the ground) get it done properly.

If you have very little in the way of assets, it may be hard to justify the cost of a Will prepared by a lawyer. The problem is, that things change. You don’t know what you don’t know.

We had a client once who won the lotto a few days after he died – yes it happens! Another had some old coins in a tin – one of them was worth a motza! You may have life insurance in your super that you don’t even know about.

Damaging estate disputes often erupt due to circumstances the deceased had no idea would cause a problem. Almost always, the dispute could have been avoided.

Unless you are on the way to jumping out of a plane, go see a specialists Wills and Estates lawyer. If you just can’t stomach paying a lawyer – go see the Public Trustee.

Why not get a free Public Trustee Will or ring around for the cheapest quote?

Dangerous ground here – the Public Trustee provide a valuable service – in some circumstances.  They will probably do a better job than some lawyers who do a bit of everything and dabble in Wills. But don’t, whatever you do, let the Public Trustee convince you to put them down as your executor without talking to a lawyer first!

Anyone with a bit of legal knowledge can put your wishes down on paper and avoid the pitfalls that would be blindingly obvious to a second year law student. They just haven’t seen many of the things that go wrong. They don’t go to the specialist seminars or read the journal articles – they don’t read the case law judgements.  Like you, they just don’t know what they don’t know – which sometimes can be very dangerous. Experienced Wills and Estates lawyers see regularly what goes wrong when Wills are not properly thought through and avoid those mistakes.

At Conrad Law, you needn’t pay more for that expertise.

What is a testamentary trust?

A testamentary trust is a trust set up under a will. This term is often used to describe a special type of trust – a discretionary trust that operates under your will after you die. Your executors/trustees appointed under your Will hold your estate assets in trust, to make sure that your intended beneficiaries receive the benefit of your estate.

In the simplest form of testamentary trust, your spouse (or other target beneficiary) has complete control over assets given to them, but holds them in trust for they and their children, giving the benefits mentioned in the next section.

What are the benefits of having a testamentary trust in my Will?

Testamentary trusts provide significant benefits and can be structured to solve many estate planning dilemmas. For example:-

  • Where an intended beneficiary has young children or complex affairs – testamentary trusts can provide substantial tax benefits.
  • A testamentary trust will protect a beneficiary’s inheritance if they go bankrupt as a result of a business or professional liability, or due to an uninsured accident.
  • You can use a testamentary trust to ensure that assets intended for your adult children do not end up going to their creditors or to their former spouse.
  • Testamentary trusts are particularly useful to solve difficult estate planning problems presented by second relationships and blended families.

My circumstances are simple – what can go wrong?

We could write several books on the subject and still only deal with some of more common problems. Here are some real world examples we have seen:

“Jim” and “Mary” made simple Wills: “I give everything I own to my spouse, but if they die before me, then I give everything I own to our children”.  Their only significant asset was a small Queenslander on the Strand.  Jim died.  After grieving for a few years, Mary sold their home for a small fortune and moved in with her new friend Bob.  Mary used the sale proceeds to pay off Bob’s business loans.  They made new simple Wills to leave half their respective estates to their respective children. Mary died before Bob. Bob later had second thoughts and changed his Will to exclude Mary’s children. Bob’s children ultimately received all of Mary’s estate assets.

“Bill” had a nasty separation and made a written ‘final’ settlement with his “Ex”, giving her everything but his house. He decided not to waste money on lawyers to get a divorce, until he needed to.  Bill met Jane and they lived together for 18 months.  Bill changed his Will to leave everything to Jane using a “Legal Will Kit”.  Jane witnessed the Will.  Bill died tragically the day after becoming engaged to Jane. The Will was invalid and the “Ex” got the house.

“John” and “Barbara” married, each having lost their first spouse a few years earlier.  Their respective adult children approved of the marriage and got on well with their new step parents.  John and Barbara were each comfortably well off.  They made simple Wills: “I give everything I own to my spouse, but if they die before me, half my assets are to be divided equally between each of my children and half is to be divided between my spouse’s children”.  John died first.  Then Barbara got sick. Her only daughter Jessica nursed her for a year. John’s children rarely contacted Barbara as they lived interstate and led busy lives. Jessica’s husband pressured her into convincing Barbara (on her death bed) to change her Will to exclude John’s children. They missed out completely and all of John’s assets went to Barbara’s daughter.