Wills & Estate Planning

Effective Estate planning protects your assets and interests for future generations through certain tools that may include a Will, a testamentary trust, a power of attorney and an enduring guardianship. The estate planning involves a process of analysis of your wishes, your assets and liabilities, your family dynamics, your financial and business structures and the operations of the current laws such as taxation and superannuation. Madison Marcus' Wills & Estates specialists offer a full suite of legal services and advice designed to protect our client’s assets and interests for future generations.

Effective Estate planning protects your assets and interests for future generations through certain tools that may include a Will, a testamentary trust, a power of attorney and an enduring guardianship.

Our objective is to ensure that Estate Plan delivered to our clients is one that affords control, protection and the ability to manage into the future.

Our experienced legal team takes each client through a streamlined process that analyses their wishes, assets and liabilities, family dynamics, financial and business structure and the operations of the current laws such as taxation and superannuation.

The Estate Plan model will take shape following consultation and advice provided by our team and will be translated into a number of documents which will give the best possible effect to their testamentary intensions.

Estate planning involves a process of analysis of the wishes, the assets and liabilities, the family dynamics, the financial and business structures and the operations of the current laws such as taxation and superannuation.

The estate plan model will take shape following a consultation and advice provided by our team and will be translated into a number of documents which will give the best possible effect to the testamentary intentions. Our experienced estate planning team can help you with:

  • Will drafting;
  • Testamentary Trusts;
  • Personal & Business Succession Planning;
  • Powers of Attorney;
  • Enduring Guardianship;
  • Advanced Care directives / Medical Treatment decision Makers;
  • Superannuation advice and Binding Death Nominations;
  • Consideration of other Trust structures;
  • Tax implications;
  • Estate Administration and distribution;
  • Will Disputes / Family Provision Claims; and
  • Dealing with consequences of intestacy

At Madison Marcus we tailor an Estate Plan to the individual circumstances, asset structure and needs to ensure the following:

  • You have an ordered, secure yet simple and flexible overall structure for your affairs for the present and the future.
  • You have scope for building up assets during your lifetime.
  • You have a comfortable and secure retirement plan for yourself and your spouse or partner.
  • You have a suitable balance between enjoyment of property and income during your lifetime and a preservation or creation of capital for your future or other beneficiaries on death.
  • As far as possible recognise and balance the claims of your present spouse, your former spouse, children of your current relationship, children of a former relationship/s, persons for whom you had an obligation to provide for and who are vulnerable or handicapped, other persons who have special claims on you and persons who may have a Family Provision Act claim against you, and charities.
  • That you are provided for satisfactorily if you are a member of a blended family.
  • Due regard is given to your superannuation and life insurances as tools for building up and preserving estate and providing for people.
  • You have a plan that is tax friendly towards you during your life and towards you family and others after death.
  • You have a plan that is administratively simple to operate and not unreasonably expensive to maintain.
  • You have a flexible and adaptable plan to be able to cope with unforeseeable changes and circumstances, domicile and the law.
  • You have a Will that is seen to be an integral and indeed essential part of your overall Estate Plan and fits comfortably with other parts of your plan and is drafted not in isolation from parts of your overall situation.

Trust structures and Asset Protection

The way you structure your assets can have a significant effect on their security and your taxation requirements. Putting the right structures in place will help to ensure that your family best benefits from family assets, both now and for future generations.

At Madison Marcus our team of expert commercial and corporate lawyers can advise and assist clients in the following:

  • Family Trusts
  • Discretionary Trusts
  • Unit Trusts
  • Special Disability Trusts
  • Business Trusts
  • Self-managed Super Funds
  • Deed of Family Arrangements
  • Corporate Restructuring
  • Advice on asset protection

Powers of Attorney

A Power of Attorney is a legal document that appoints and authorises a person nominated by you, to lawfully act on your behalf as though they were you in legal, property and financial matters. A Power of Attorney is New South Wales does not give the attorney the authority to act on your behalf in relation to medical treatment.

A Power of Attorney may be enduring or general.

A General Power of Attorney may give the attorney power to act on your behalf for a limited period of time, for example if you are overseas or to act in relation to certain matters only. The fundamental characteristic of a General Power of Attorney is that it becomes void in the event that you become mentally incapacitated.

An Enduring Power of Attorney may give the attorney the same power as above or more general powers, however it continues to operate if and after you become mentally incapacitated. The appointment must be made by you before you lose mental capacity and cannot be made after. A court or tribunal can make that appointment for you in such an event. A Power of Attorney must be signed by the principal (the person giving the appointment) and if the Power of Attorney is an enduring one, it must be accepted and signed by the attorney before it can operate.

The document must be explained to you by a solicitor and signed by them as having given you the necessary advice and certifying that you appeared to have capacity to understand the effect of the appointment. Your attorney must be someone you trust and someone who can make important decisions for you.

What is an Enduring Guardian?

An Enduring Guardian is a person who is nominated by you in a prescribed form as someone who can make decisions on your behalf in relation to your health, lifestyle, medical and dental treatment in the event that you lose mental capacity and can no longer make those decisions for yourself. The appointment only has effect whilst you are totally or partially incapacitated.

Who can be an Enduring Guardian?

Your Enduring Guardian must be over the age of 18 years and should be someone whom you trust. An Enduring Guardian must not be:

  • a person in a professional or administrative capacity who is involved in providing you with medical services, accommodation or any other services to support you in your life;
  • a family member of such a person.

How do I appoint an Enduring Guardian?

The appointment must be done in the prescribed form in writing and must be:

  • signed by you;
  • signed by your Guardian;
  • witnessed by a solicitor or barrister.

The document does not need to be registered or lodged.

What is an Advance Care Directive (ACD)?

Your Guardian can be guided through conditions placed in the appointment document or in a separate document known as an Advance Care Directive (ACD).

This document sets out your wishes in relation to medical treatment for the purpose of prolonging your life in cases where you may be terminally and irreversibly ill or injured.

The ACD does not need to be in a prescribed form but needs to be clear and unambiguous. The ACD does not need to be registered but must be signed and should be witnessed.

Wills

Why you should have one

A Will is a document that is drafted during your lifetime that sets out your intentions as to how you want your assets to be divided upon your death.

Whilst valid during your lifetime a Will only operates after your death.

A Will must be legally valid and as such must be properly drafted and witnessed.

It should be revised every five years or on re-marriage or a new relationship to ensure it is up to date.

If you die without a Will or a properly drafted Will, you are known to die “intestate”. Your estate will be distributed but not in accordance with your intentions and wishes but in accordance with rules and a specific order prescribed by the applicable intestacy laws.

These laws may change from time to time and will not take into consideration your particular circumstances including your financial and business structure, family dynamics, taxation issues and other relevant factors that can be considered in a Will.

For all enquiries in relation to Wills, Will disputes or estate planning,  please contact our specialists today. 

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