Estate planning is about more than deciding who receives your assets. It helps make sure the right people can act for you if you lose capacity, your children are cared for, and your wishes are clear when you die.
If you’re approaching retirement or raising a family, a practical estate planning guide can help you identify what to organise and where to get professional help. A clear plan can also support generational wealth by making it easier to pass on assets and reduce avoidable uncertainty for the people you care about.
Estate planning rules can differ across Australian states and territories. This article is general information, not legal, tax or personal financial advice. A legal professional can help prepare or review your will and other legal documents.
What should an estate plan cover?
An estate plan brings together documents, decisions and records that affect what happens if you die or can no longer make decisions for yourself. It commonly includes:
- A will and instructions for your executor
- A plan for the care of children who are under 18
- Enduring powers of attorney and, where available, documents for personal or health decisions
- Superannuation death benefit nominations
- Any testamentary trust arrangements
- Current beneficiary details and a record of your assets
Not everything you own will necessarily be dealt with by your will. For example, superannuation benefits and jointly owned assets may follow different rules. Start by listing what you own, how it is held and who currently benefits from it.
1. Make a will with a legal professional
A will sets out how you want certain assets distributed after your death and who should manage your estate. It can name an executor, set out specific gifts and explain how remaining assets should be distributed.
But a will does not automatically control every asset. Superannuation, some insurance benefits, jointly owned property, and assets held in a trust or company can be treated differently. A lawyer can help you understand which parts of your financial life your will covers and how the rest should be coordinated.
A homemade or outdated will can create uncertainty, especially if your circumstances are complex. Consider professional legal advice if you have a blended family, a business, assets overseas, a family trust, a beneficiary who needs extra support, or a separation or divorce. The rules for making a valid will also vary by state and territory. Legal Aid NSW’s wills information is one example of state-specific guidance.
Your next step: List your major assets and debts, then speak with a wills solicitor about how they’re owned and what your will should address.
2. Choose an executor and plan for your children
Your executor is responsible for carrying out the instructions in your will and administering your estate. Choose someone who is organised, trustworthy and willing to take on the role. It’s sensible to ask them first and name a substitute in case they can’t act when needed.
If you have children under 18, your will can record who you would like to care for them if you die. Talk with your preferred guardian before naming them, and consider naming a substitute. A nomination is important guidance, but it does not guarantee a particular outcome: a court may need to decide what is in a child’s best interests, taking the circumstances into account.
You can also leave practical guidance for the people who may care for your children, such as information about schooling, health needs and family connections. Keep this information up to date, and get legal advice about how your wishes should be documented.
Your next step: Have a conversation with the people you’re considering for executor and guardian roles. Confirm they understand what may be involved.
3. Arrange powers of attorney for incapacity
Estate planning isn’t only about what happens after death. You may also want to choose who can help make decisions if you lose the capacity to make them yourself.
An enduring power of attorney appoints someone to make specified financial or legal decisions on your behalf, according to the document and your state or territory’s rules. Choose carefully: your attorney should be someone you trust to act in your interests. You can ask a lawyer about setting limits, appointing more than one attorney or naming a substitute.
Personal, lifestyle and health decisions may require a separate document. In Western Australia, for example, an enduring power of guardianship relates to personal, lifestyle and treatment decisions if you cannot make them yourself. Terminology, forms and signing requirements vary across Australia, so check the rules where you live.
These documents generally do not replace a will: an attorney acts during your lifetime, while your executor takes responsibility for your estate after your death.
Your next step: Find out which documents apply in your state or territory, then ask a legal professional how to prepare and sign them correctly.
4. Review your superannuation death benefits
Superannuation is often a significant family asset, but it does not automatically form part of your estate. Your super fund trustee generally pays a death benefit under the fund’s rules and the superannuation laws.
You may be able to nominate an eligible dependant or your legal personal representative, the executor or administrator of your estate, to receive the benefit. A binding death benefit nomination can direct the fund trustee to pay your benefit to nominated recipients if the nomination meets the fund’s requirements and is valid when you die. With a non-binding nomination, or no nomination, the trustee may have discretion over who receives the benefit.
Rules differ between funds. Check who you can nominate, what form and witnesses are required, whether the nomination is binding, and how long it remains valid. Some nominations expire and need to be renewed; don’t assume yours is still in force. The Australian Taxation Office’s guide to superannuation death benefits explains the general framework.
Nominating your estate may allow your will to guide how the benefit is distributed. However, it can also have different tax and estate consequences. Consider legal and financial advice before deciding what suits your circumstances.
Your next step: Contact each super fund to confirm your nomination, eligible recipients and expiry or review date.
5. Consider whether a testamentary trust is appropriate
A testamentary trust is created through a will and begins after you die. It can give a trustee responsibility for managing assets for beneficiaries. Depending on how it is designed, it may be useful when beneficiaries are young, need support, or may benefit from receiving an inheritance over time rather than all at once.
A trust is not necessary for everyone. It can bring extra legal, tax and administration responsibilities, and its benefits depend on your family and financial circumstances. If you’re considering one, ask a lawyer to draft the will and speak with a tax professional about how the trust may operate. Avoid relying on general claims about tax benefits or asset protection without advice tailored to your situation.
6. Keep beneficiaries and records up to date
An estate plan can lose touch with your wishes as life changes. Review your will, powers of attorney, super nominations and insurance beneficiaries after events such as a marriage, separation, birth, adoption, death in the family, or a significant change in your assets.
It’s also useful to keep a private record of your accounts, super funds, insurance policies, debts, business or trust interests, and the location of important documents. Tell your executor or a trusted person how to find the record. You don’t need to give anyone unnecessary access to passwords or sensitive account details.
If you’re an SMSF trustee, your fund’s trust deed and records may also matter when planning for a member’s death or changes in trustees. Advice360’s SMSF trustee obligations factsheet is a useful starting resource. It doesn’t replace advice on your SMSF’s governing documents or your personal estate plan.
Bring your retirement and legacy plans together
Estate planning works best when it connects with your broader financial plans. Your retirement income, superannuation, insurance, debts, property ownership and intended beneficiaries can all affect what you leave behind and how smoothly it can be managed.
Advice360’s financial planning services include retirement and legacy planning to help you consider how these pieces fit together. A financial adviser can help you assess your overall financial strategy; a legal professional should prepare or review legal documents such as your will and powers of attorney.
A useful first step is to gather your current documents, write down what has changed and note the questions you want answered. Then speak with the right professionals about putting your plan in place.
We’re more than happy to have a complimentary chat about your estate plan. Just reach out to our team and we’ll find a time that suits you.
This article provides general information only and does not take your personal circumstances into account. It is not legal, tax or financial advice. Estate planning rules vary by state and territory, and the effect of your documents depends on your circumstances. Speak with a qualified legal professional about wills and other legal documents, and seek personal financial or tax advice before acting.
