Wills & Estate planning

  • Direct Partner Access
  • Flexible Fees
  • Expert Advice
  • Melbourne-Based
  • Free Case Review
  • Fast Turnaround Times

Six Tips Before Preparing a Will

1) Your family trust does not form part of the estate

Example: Johnny has a family trust. The trust owns two investment properties, a Rolls Royce, and a holiday house on Mt Buller. None of these assets will form part of Johnny’s estate when he dies.

2) Superannuation does not automatically form part of your estate
Example: Sarah is married with 2 children. Sarah is also a member of Hostplus and Plum Insurance. Tragically Sarah has an accident and dies. Sarah does not have a binding death benefit nomination for either fund. The superannuation does not form part of the estate and the trustee of the funds now has discretion as to how to apply $1.2 million in death benefits payments.

3) Dying without a valid will can lead to conflict over superannuation death benefits and leave loved ones without adequate provision

Example: The recent Queensland Supreme Court decision of McIntosh v McIntosh [2014] QSC 99 stands for the proposition that if you die without a valid will, or without making a binding death benefit nomination, the administrator appointed by the court is under a fiduciary duty to request that the trustee of the superannuation fund pay the death benefits (in the absence of a binding death benefit nomination) to the estate rather than to an individual applicant (even if that applicant is a dependent). Were an administrator to apply to have the funds paid to them personally rather than the estate, they would be found to be in breach of their fiduciary duties and made to pay any death benefits they received to the estate.

Example: John dies and leaves behind his wife Mary and a young baby Sally. John does not have a will. John’s estate at the date of his death is worth$955,000. Under the law, Mary is entitled to the first $100,000 and all personal chattels of John’s estate which include his personal effects and his car. She is further entitled to one third of the balance of the estate and her daughter Sally is entitled to the remaining two thirds of the estate. Sadly, because John didn’t prepare a will, Mary is entitled to approximately $385,000 of the estate which is not enough for her to discharge the mortgage over the family home. If John had taken the time to prepare a will, he could have prevented the financial disaster Mary now finds herself in as she would have inherited the estate valued at $955,000 instead of the $385,000 she is now receiving.

4) Be careful who you leave out of your will

Example: Dermott Baratone, a famous AFL footballer died after tragically falling off a balcony at a Las Vegas casino. Dermott left behind 2 former wives, one current wife and 6 children from the three marriages. Dermott left all his estate to his current wife Sandy. Dermott had been supporting all his ex-wives and children before his death. Dermott’s ex-wives and children make a claim against Dermott’s estate, with the effect that Dermott’s estate is whittled away from costly and bitter legal battles. Dermott should have sought advise rather than letting his children and former wives fight over his estate.

5) How you own property affects whether you can leave it by will

Example: Sally and Mary are longtime friends. Sally and Mary buy an investment property in South Yarra as joint proprietors. Sally dies. Sally’s share in the property automatically transfers to Mary as they purchased the property as joint proprietors and not tenants in common. This is not what Sally would have wanted.

6) Sometimes you need two wills

Example: Rodriguez has property in Australia and in his native country of Mexico. Rodriguez dies and only leaves behind a valid Mexican will. This creates all sorts of taxation problems for Rodriguez’s estate.
Rodriguez should have made one will for Mexico and one for Australia.

Contact Us

For Your Free Phone Consultation


    News & Updates

    Our Happy Clients

    The Difference Is In Our Level Of Experience Defending The Most Difficult Cases & Our Rigorous Approach To Each Matter

    • I have known Brett Samuel and Rosendorff Lawyers for over 18 months. Brett is a commercially astute lawyer who provides excellent service, quick turnaround, responsive and useful advice and above all understands that clients expect results not just legal gobbledygook.

      I have referred Brett to a number of clients requiring commercial legal expertise and each has commented on his service and value for money approach to the law.

      I have also personally engaged Brett on a number of commercial and private matters and have found him to be an excellent ally. His advice is highlighted by providing options to the client but importantly, recommending a course of action that minimises risk and maximises outcomes. To date this approach has proven to be very valuable and what I, as a client, expects.

      I have no hesitation in recommending Brett for any commercial matter that you need advice on.

      Colin Linke, Director, Bentley Partners Accounting Services

    • I have used the services of Rosendorff Lawyers for a number of years now and have found them to be a great asset to my Business Sunburst Group. Their advice concerning contractual law and from time to time commercial litigation has been indispensable. Brett Samuel is always a pleasure to deal with as he is meticulous in his research prior to any legal action we might be considering. My association with Rosendorff Lawyers has helped my business to make the correct informeddecisions and in doing so has enabled me to save many thousands of dollars that otherwise uniformed decisions may have cost me.


    • Thanks for the excellent work you and your team at Rosendorff Lawyers did throughout the whole process of setting up Tarp Asset Management. The advice given was much appreciated. Coming in under budget was a welcome surprise too. I would not hesitate to recommend Rosendorff Lawyers to anyone searching for a reputable Melbourne-based financial services law firm. Your team went well above and beyond what was required to achieve success. I look forward to a long and rewarding professional relationship with Rosendorff Lawyers.

      Alex Tarpkos Tarp Asset Management

    Request a free phone consultation

    Tell us about your case and will get in touch with you shortly.

    Get In Touch With Us

    Call Now Make an Enquiry