It is important that a Will that is to take effect in Australia is consistent with the objectives and strategy of the willmaker. Consequently, a Will may allow real estate or other assets to pass down to a beneficiary, rather than the asset having to be sold by the executor.

A Will may also adjust for distributions made in respect of the willmaker’s superannuation death benefits (if they are paid directly to a dependant) or for the control of a family trust passing to one or more of the beneficiaries. A Will may also create one or more testamentary trusts. It is important, however, to remember that the primary role of a Will is to deal with personally owned assets. As a result, it is not unusual for assets in a superannuation or a family trust to be dealt with quite independently of a Will and for jointly owned assets to pass by survivorship.

For individuals who lack testamentary capacity to prepare a Will, a statutory Will can be sought by family members, carers or guardians on their behalf to ensure their estate is distributed in accordance to their likely intentions.  It is a document authorised by the Supreme Court, and is usually sought when the individual’s circumstances change and their current Will or intestacy laws no longer reflect what they would have wanted. 

Powers of attorney apply to the grantor’s lifetime and have a particular focus on loss of sufficient decision making capacity. They cover financial (often with special provisions for renewing lapsing binding death benefit nominations and for meeting expenses of vulnerable adult children or education expenses of grandchildren), medical treatment and care powers for the nominated attorneys. Different people can be appointed for different attorney roles.