For many people, the idea of a Will is a single page stating, “I leave everything to my spouse.” However, as life in the Sydney suburbs becomes more complex—with blended families, self-managed super funds (SMSFs), and overseas assets—the “simple Will” is becoming a relic of the past. Estate planning lawyers in Rouse Hill and surrounds often see the fallout when a basic Will meets a complicated life.
What Makes a Will “Complicated”?
A Will becomes complicated not just because of the amount of money involved, but because of the structure of the assets and the nature of the beneficiaries. Common factors that move a Will into the “complex” category include:
- Blended Families: Ensuring that children from a previous marriage are protected while still providing for a current spouse.
- Testamentary Trusts: Creating a trust within the Will to protect assets from a beneficiary’s creditors or a potential divorce.
- Vulnerable Beneficiaries: Providing for a loved one with a disability or a history of substance abuse without jeopardising their government benefits.
- Business Succession: Transitioning a family business to the next generation without causing a tax nightmare or family feud.
The Pitfalls of “DIY” Will Kits
While Rouse Hill newsagents sell Will kits for a small fee, the hidden costs of an invalid Will are astronomical. In NSW, the Succession Act 2006 sets strict requirements for how a Will must be witnessed and signed. More importantly, a DIY kit rarely addresses “non-estate assets.” For example, your superannuation and any assets held in a family trust do not automatically pass under your Will. Without professional advice, your largest assets might end up in the wrong hands regardless of what your Will says.
The Power of Testamentary Trusts
One of the most effective tools for a complicated estate is the Testamentary Discretionary Trust. Instead of giving an inheritance directly to a child (where it could be lost in a future bankruptcy or family law settlement), the assets are held in a trust. The beneficiary can still access the funds, but they do not “own” them in a way that allows creditors to seize them. Furthermore, these trusts offer significant tax advantages for distributions made to minor children.
Addressing Potential Challenges: The Family Provision Claim
In New South Wales, certain people (spouses, children, and some dependents) have a right to contest a Will if they feel they haven’t been “adequately provided for.” A complicated Will requires a proactive strategy to minimize the risk of a Family Provision Claim. This might involve documenting the reasons for a specific distribution or providing for a person through a “Right to Reside” in a property rather than a direct gift.
The Role of the Executor in a Complex Estate
Being an executor of a complicated Will is a massive responsibility. You are legally liable for the correct distribution of assets and the payment of all estate debts and taxes. When a Will involves overseas property or complicated tax structures, an executor should always seek legal guidance. Afoltern Solicitor lawyers provide comprehensive support for executors in Rouse Hill, from obtaining Probate in the Supreme Court of NSW to the final distribution of the estate.
