FAQs

An unpaid present entitlement is money a trust owes a beneficiary but has not paid. If that beneficiary is you, it is an asset of your estate and your Will has to deal with it. Loans between you and your entities work the same way. These must be considered as part of your estate plan as they have the effect of moving wealth between people and entities. See our post on estate planning for your related entities.

The appointor is the person who can remove and replace the trustee of a family trust, so it is the position that ultimately controls the trust. What happens to it when the appointor dies is set by the deed and it differs from deed to deed. See our post on estate planning for your related entities.

Your Will can pass the shares you own in a company. It cannot pass anything that is owned by a family trust, because the trust owns those assets, not you. Your Will may be able to pass control of the trust, subject to the terms of the trust deed. Each trust is governed by its own terms which is why specific advice is so important.

Our business succession diagnostic is priced for each entity, so what you pay depends on how many companies, trusts and funds you control. Many of the business owners we act for have more than one. We’ll give you a tailored quote or estimate after your estate planning conference. See the current prices on the business succession planning page.

We review the deed or constitution for each of your structures and work out who takes over if you die or lose capacity. You get a written plan setting out the current position and advice as to how to achieve your objectives. This might include a Deed of Variation if the trust deed needs to be varied to meet your needs or a Deed of Successor if the deed nominates the wrong person.

No. A special disability trust is a separate structure with its own rules, set up for a beneficiary who receives means tested support. See our special disability trusts page.

It can help, but it is not a guarantee. Because the assets are held by the trustee rather than owned by the beneficiary, they are not treated the same way as an inheritance paid out to a person directly. How a court treats them depends on the facts. See testamentary trusts in WA: how they work and who needs one.

The trustee decides which beneficiaries receive the trust income each year, so income can go to whoever is on the lowest marginal rate in that year. A minor beneficiary of a testamentary trust is taxed at adult rates rather than the penalty rates that apply to other trust income, which means their tax free threshold is available. Whether any of that helps depends on who your beneficiaries are and what the trust earns, which is something we work through at the estate planning conference. See testamentary trusts in WA: how they work and who needs one.

Yes. The trustee can distribute income and capital to them and can also pay for things on their behalf. What changes is that they do not own the assets, so the assets are not exposed in the same way as money paid out to them directly.

The trustee you name in your Will controls it, within the terms the Will sets. You can name a beneficiary as trustee, a beneficiary together with someone independent or someone independent alone. See our post on who should be the trustee of a testamentary trust.

Yes. The conference is where we work out how many trusts your Will needs, who the trustees and appointors should be and how each trust is meant to work. The conference is a fixed price. We’ll give you a tailored quote for your Wills after your estate planning conference, once we know how many trusts your Will needs and what other matters need to be included in your Will.

Our prices are published on the testamentary trust Wills page. We’ll give you a tailored quote after your estate planning conference, once we know how many trusts your Will needs and what other matters need to be included in your Will.

A testamentary trust Will creates one or more trusts that come into existence when you die. Instead of paying an inheritance to a beneficiary, the Will leaves it to a trustee to hold for them. Your beneficiary can still benefit from it without owning the assets personally.

Yes, you can change your Will and estate plan while you have capacity. You can make a new Will at any time and the enduring powers can be revoked and replaced. We recommend reviewing your plan whenever you marry, separate, divorce, have a child, sell a business or restructure an entity.

Not without authorisation. An attorney under an enduring power of attorney cannot deal with property held in trust and cannot act as a company director or secretary unless authorised by the company constitution. Who steps in is set by the trust deed and the company constitution, which is why it is so important to get advice specific to your own documents.

A Will is one document within an estate plan. Your Will directs who receives the assets you own personally when you die. An estate plan also deals with your superannuation, anything held in a trust or a company, jointly owned property and who acts for you if you lose capacity. Ask us about our written estate plan documents, a comprehensive advice you can keep with your Will that guides you and your loved ones as to how your estate plan is structured.

Our initial consultation is a fixed price. After the consultation we’ll have a better understanding of your specific needs and will give you a tailored quote or estimate. The business succession diagnostic is priced for each entity, so what you pay depends on how many structures you have. See the current prices on the estate planning page.

At your initial appointment we’ll ask you for an overview of the trusts and companies you control, but we won’t analyse the documents in the meeting. After the appointment we’ll ask you for the trust deed and any deeds of variation for each family trust, plus the constitution and share register for each company. For a self-managed super fund we’ll need the trust deed and the current member statements. We cannot advise on succession for a structure without reading its deed.

We’ll talk through what you own, what entities or trusts you control and who you want to leave your estate to. We explain in general terms how a Will works alongside your superannuation, your jointly owned property and anything held in a trust or a company, so you can see where your Will reaches and where it does not. We’ll consider whether an inheritance should be held in a trust rather than paid out directly to a beneficiary and discuss how your superannuation should be directed. All of this forms the basis of your estate planning strategy. The consultation is a fixed price and we give you a tailored quote for preparing your estate plan and any documents you need afterwards.

No, they do different jobs. An EPOG appoints a person to make treatment decisions for you when the time comes, whereas an advance health directive records your own decisions in advance about specific treatments. We do not prepare advance health directives, because they are a Department of Health form best worked through with your doctor, who can explain what each decision means.

Both are fixed price whether you make one on its own or alongside your Will, so you know the cost before your appointment. See the current prices on our enduring power of attorney and guardianship page. Making your Will, EPOA and EPOG together costs less than making the three separately.

We witness both documents for you at your appointment, so you do not have to arrange witnesses yourself. Each document needs two witnesses, one of whom is authorised by law to take declarations. Your attorney and guardian must sign to accept their appointment. Your attorney’s signature doesn’t need a witness, but your guardian’s needs two, on the same rule as your own. We will give you detailed instructions to take with you after your appointment.

Not necessarily. Your superannuation is held by the trustee of your fund rather than by you, so it does not automatically form part of your estate. A binding death benefit nomination directs the trustee where to pay your super when you die.

A handwritten Will is valid if it is signed and witnessed the same way as a typed one. Where a document does not meet those requirements the Supreme Court has a power to admit it anyway if certain conditions are met, including that there is evidence that you intended the document to operate as your Will, despite it not being signed correctly. See whether a handwritten Will is valid in Western Australia.

A Will does not have to be prepared by a lawyer to be valid. It has to meet the signing and witnessing requirements and it has to say what you mean clearly enough for your executor to act on it without applying to the Court for directions. See why home made Wills go wrong even when they are signed correctly.

A Will has to be in writing, signed by you and signed by two witnesses who are both present when you sign. The witnesses have to be there at the same time as each other. See what the law requires for a valid Will in Western Australia.

Your Will is drafted and signed while you are with us, so there is no second appointment and nothing arrives in the post to sign later. A simple Will takes about 45 minutes for each person. We store the signed original free of charge in our secure document storage facility if you would like, otherwise you can take it with you to store safely at home.

Yes, you can revoke either document at any time while you still have legal capacity. To do it properly you should write REVOKED and sign and date on the original, or sign a written Deed of Revocation and destroy every copy. You should notify everyone holding the document, including your attorney or guardian and any bank, doctor or aged care provider. If your EPOA was lodged at Landgate the revocation must be lodged there too. See our post on EPOA and EPOG in WA: who makes decisions.

You need to register your EPOA at Landgate only if your attorney is likely to need to sell or deal with your land, in which case it has to be lodged with the Registrar of Titles before any land transaction can go through. There is no general registry of EPOAs in Western Australia, so this is the only registration step there is. Landgate will need an original signed copy rather than a photocopy, plus a statutory declaration of non-revocation if the document is more than three months old.

Your family will need to apply to the State Administrative Tribunal for an administration order or a guardianship order before anyone has authority to act for you. Until that order is made the bank will not let anyone operate accounts in your sole name and your house cannot be sold or leased, including to fund aged care. You must have capacity to make an EPOA or an EPOG, so don’t leave it too late. See our post on failing to make an enduring power of attorney.

When you make your EPOA you must choose whether it comes into effect immediately when you sign it or only once the State Administrative Tribunal has declared you have lost legal capacity. We take you through this choice at your appointment. Your EPOG is different and only ever comes into effect if you lose the capacity to make personal, lifestyle or treatment decisions for yourself.

Any adult you trust can be your attorney or your guardian. You can appoint more than one person to either role. Where you appoint two or more people as your attorney you choose whether they must act together or whether they can act separately. If you appoint more than one guardian, they must act jointly. Everyone you appoint has to sign an acceptance before the document can be used.

An enduring power of attorney (EPOA) covers your money and property. An enduring power of guardianship (EPOG) covers you as a person, so your guardian decides where you live, who provides your care and whether you receive a particular treatment. You need an EPOA whatever your circumstances. Without an EPOG your next of kin can still make treatment decisions for you if you’re unable to make them yourself, but no one else can decide where you live or who cares for you unless they apply to the State Administrative Tribunal for an order. See our post on EPOA and EPOG in WA: who makes decisions.

Our Wills on the spot appointments are held at our Perth office at Level 4, 1008 Hay Street, Perth where we prepare your Will and witness you signing it in the same meeting. If you can’t get to the office we can take your instructions by videoconference and post your Will to you with instructions for signing it. We can’t make a Will by telephone.

A simple Will typically leaves your whole estate to your spouse or partner if they survive you and to your children equally if they do not. It does not create a discretionary trust and it does not deal with a company, a family trust or a self-managed super fund. If your affairs include any of those, an estate planning consultation is the right starting point rather than a simple Will.

The Department of Social Services publishes the rules and the beneficiary assessment process for a Special Disability Trust (SDT). Services Australia administers the means test side of an SDT. More information can be found on the Services Australia Special Disability Trusts page and on our Special Disability Trusts page.

There are two means test concessions. First, trust assets up to the asset value limit are exempt from the beneficiary’s social security assets test. Second, a family member who contributes to the trust may also be exempt from the usual social security gifting rules. The asset value limit is indexed on 1 July each year, so check the current figure with Services Australia before relying on it.

The trust fund must be used for the care and accommodation needs of the beneficiary. There is a limited allowance each financial year for discretionary spending unrelated to those needs, however that allowance is relatively low. Spending beyond that allowance can cost the trust its concessional treatment.

A Special Disability Trust can have only one beneficiary who must be assessed as severely disabled under the Commonwealth rules before the trust is set up. The first step is to contact the Department of Social Services to ascertain whether a person is an eligible beneficiary. See the guide to the beneficiary assessment process.

You’ll need to bring your original photo ID (driver’s licence or passport), as well as the list below, depending on which documents you’d like to make. To make your Will, please bring an overview of your assets and liabilities, the full names and addresses of your executors and of any guardians for children under 18, plus the full names of your beneficiaries. For your enduring power of attorney (EPOA) and enduring power of guardianship (EPOG) you’ll need the full name and address of each person you want to appoint, plus anyone you want as a substitute. It helps to have spoken to them first, because everyone you appoint has to sign an acceptance before the document can be used. See the Making your Will checklist, the enduring power of attorney checklist and the enduring power of guardianship checklist.