General Overview of Australian Laws on Wills and Estates

Under Australian law, it is possible to discern several legal documents and proceedings that directly pertain to cases of distribution of an individual’s assets in cases of the person’s death. They include wills, powers of attorney, estate plans, testamentary trusts, superannuation death nominations, powers of guardianship, anticipatory direction, legal and financial housekeeping, etc. Thus, an estate plan may be defined under Australian law as a will or any other directions on how an individual desires to have his or her assets allocated after his or her death. An estate plan also involves legal documents that regulate how the person will be treated, both financially and medically, in case of his inability to make his own decisions in the future.

In a nutshell, an estate plan encircles all possible estate related documents and legal acts, such as a will, superannuation death nomination, testamentary trust, powers of attorney, powers of guardianship, and anticipatory direction. If an individual have made a binding nomination in his super or insurance policies, the beneficiaries named in those policies will override anyone specified in the will. If a person has a family trust, the trust will go on and its assets will also be distributed in accordance with the trust deed, irrespective of what has been written in the will.

Wills constitute another major group of estate related documents. A will takes legal effect only in case of a will maker’s death. A will can regulate different issues, such as a manner whereby an individual’s assets will be shared, who will care for the children if they are still young, what trusts will be established, how much money will be donated to charities, as well as instructions regarding a will maker’s funeral. Under Australia’s law, a will may be drafted and amended by solicitors or private trustees, who usually charge a fee. Certain public trustees will not charge a fee to compose and amend a will, but only if they act as the executor of the person’s will. Other public trustees may exempt an individual of a fee for the preparation or amendment of the will if the person a pensioner or aged over sixty.

Testamentary trusts constitute another category of estate related documents. A testamentary trust is a trust (a legally binding arrangement) that only takes effect when the willmaker dies. Testamentary trusts are usually entered into to safeguard assets and prevent waste. Under Australia’s laws, a trust is administered by a trustee who is usually appointed in the will. A trustee must take due care if the assets for the benefit of the beneficiaries until the trust expires. The expiry date of a trust is a specific date, such as when a minor person reaches a specific age or a beneficiary attains a certain milestone or goal.

As far as powers of attorney are concerned, it needs to be pointed out that a power of attorney is a legal document that provides the appointee with the legal authority to look after the appointer’s affairs on the latter’s behalf. Powers of attorney are dependent on which state or territory the appointer resides. Also, powers of attorney may refer to either financial powers, or might as well include wider guardianship. Australian law differentiates among the following basic types of powers of attorney. First, a general power of attorney is the power to appoint an individual to make financial and legal decisions for the appointer, generally for a designated period of time, for instance, if an individual is abroad and incapable of managing his or her legal affairs at home. Second, an enduring power of attorney is a legal document that allows appointing an individual to make legal and financial decisions in case the appointer loses the capacity to make his or her own decisions. The last but not least, a medical power of attorney pertains only to the ability of making medical decisions on the appointer’s behalf if the appointer is actually incapable of make such decisions.


General Overview of Australian Laws on Wills and Estates
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