Wills & powers of attorney
Preparing for your family's future
No-one wants to think about death in the prime of life. But it's
important to decide what will happen to your assets when you die.
Find out how you can give instructions to your family about your
legal and medical preferences should you fall ill or lose the
capacity to make those decisions yourself.
An estate plan includes your will as well as any other
directions on how you want your assets distributed after your
death. It includes documents that govern how you will be cared for,
medically and financially, if you become unable to make your own
decisions in the future.
You must be over 18 and mentally competent when you draw up the
legal agreements that form your estate plan. Key documents might
- Superannuation death nominations
- Testamentary trust
- Powers of attorney
- Power of guardianship
- Anticipatory direction
If you have made a binding
nomination in your super or insurance policies, the
beneficiaries named in those policies will override anyone
mentioned in your will. If you have a family trust, the trust
continues and its assets will also be distributed according to the
trust deed, no matter what is written in your will.
You should ask a legal professional to check your estate plan. A
good estate plan should minimise the tax paid by your heirs, and
help avoid any family squabbles.
A will takes effect when you die. It can cover things like how
your assets will be shared, who will look
after your children if they are still young, what trusts you want
established, how much money you'd like donated to charities and
even instructions about your funeral.
Your will can be written and updated by private trustees and
solicitors, who usually charge a fee. Some Public Trustees will not
charge to prepare or update your will, but only if they act as the
executor of your will. Other Public Trustees may only exempt you
from charges if you are a pensioner or aged over 60. Check with the
Public Trustee in your state or territory.
You can also buy a will kit from Australia Post, but it's a good
idea to ask a solicitor to review your will to make sure everything
is in order. If a will isn't signed and witnessed properly, it will
Keep your will valid and up to date as your legal rights
change, specifically if you marry, divorce or separate;
have children or grandchildren; if your spouse or beneficiaries
die; or if you have a significant change in financial
If you die intestate or your will is
invalid, an administrator appointed by the court pays your
bills and taxes from your assets, then distributes the remainder,
based on a pre-determined formula, which may not be how you
intended your assets to be distributed.
If you die intestate and don't have any living relatives, your
estate is paid to the state
A testamentary trust is a trust set out in a will that only
takes effect when the person who has created the will, dies.
Testamentary trusts are usually set up to protect assets.
Here are some reasons why you would create a testamentary
- The beneficiaries are minors (under 18 - 21 years old)
- The beneficiaries have diminished mental capacity
- You do not trust the beneficiary to use their inheritance
- You do not want family assets split as part of a divorce
- You do not want family assets to become part of bankruptcy
A trust will be administered by a trustee who is usually
appointed in the will.
A trustee must look after the assets for the benefit of the
beneficiaries until the trust expires.
The expiry date of a trust will be a specific date such as when
a minor reaches a certain age or a beneficiary achieves a certain
goal or milestone, like getting married or attaining a specific
Powers of attorney
Appointing someone as your power of attorney gives them the
legal authority to look after your affairs on your behalf.
Powers of attorney depend on which state or territory you are
in: they can refer to just financial powers, or they might include
broader guardianship powers. You will need to check with your local
Generally speaking, there are different types of power of
- A general power of attorney is where you
appoint someone to make financial and legal decisions for you,
usually for a specified period of time, for example if you're
overseas and unable to manage your legal affairs at home. This
person's appointment becomes invalid if you lose the capacity to
make decisions for yourself.
- An enduring power of attorney is where you
appoint a person to make financial and legal decisions for you if
you lose the capacity to make your own decisions.
- A medical power of attorney can make only
medical decisions on your behalf if you become unable to do so
You can prepare a few other documents to help your legal
appointees and family as you grow older, including:
- An enduring power of guardianship that gives a
person the right to choose where you live and make decisions about
your medical care and other lifestyle choices, if you lose the
capacity to make your own decisions.
- An anticipatory direction records your wishes
about medical treatment in the future, in case you become unable to
express those wishes yourself.
- An advance healthcare directive (or living
will) documents how you would like your body to be dealt
with if you lose the capacity to make those decisions
The documents you choose to draw up will depend on your
situation, and the responsibilities you are happy to entrust to
others. Get legal advice if you are not sure.
Choosing your powers of attorney
Nominate people that you know are trustworthy, if possible
financially astute, and likely to be around when you need them.
Your legal and
Once your paperwork is in order, it will help your executor and
family if you list the legal documents you have and where they are
Keeping a record of your personal information and notes on how
your legal documents, assets and investments are arranged can also
Here is a list of key documents to keep:
- Birth certificate
- Marriage certificate
- Enduring power of attorney
- Advance healthcare directive (also called a living will)
- Personal insurance policies
- House deeds
- Home and contents insurance
- Deeds and insurance policies for any other real estate you
- Bank account details
- Superannuation papers
- Investment documents (securities, share certificates,
- Medicare card
- Medical insurance details
- Pensioner concession card
- Any pre-payments of funeral investments
The NSW Government's Planning Ahead tools website gives
more detailed information on advance care directives, wills, power
of attorney and enduring guardianship.
A good will and estate plan can help make sure
your wishes are carried out after you die, or if you are no longer
able to make your own decisions.
Last updated: 05 Apr 2016