Estate planning is more than simply writing a will. It’s about protecting your wealth, providing for loved ones, and reducing legal and tax complications after your passing.
Yet many Australians either delay planning altogether or rely on generic online templates. This can lead to expensive disputes, unnecessary tax burdens, and outcomes that don’t reflect your true wishes.
Below are five of the most common legal issues in estate planning — and why working with both a Lawyer and a Financial Adviser is essential.
- Invalid or Poorly Drafted Wills
A will is the foundation of estate planning, but a surprising number are legally defective. DIY or outdated wills can fail due to technical errors — such as incorrect signing or witnessing — or ambiguous language that leads to confusion. Courts may declare such wills partially or entirely invalid, causing your estate to be distributed under intestacy laws rather than according to your wishes.
A lawyer ensures your will meets formal requirements under the Succession Act (in your state or territory), reflects current circumstances, and is worded to minimise the risk of dispute. A financial adviser can complement this by aligning the will with your broader financial strategy, including superannuation and insurance.
- Disputed Estates and Family Provision Claims
Even valid wills can be contested. Under Australian law, certain family members — including spouses, children, and sometimes dependents — may bring a Family Provision Claim if they believe they were inadequately provided for. Disputes can drain estate assets, cause family conflict, and delay distributions.
A lawyer can advise on strategies to reduce the likelihood of successful claims, such as documenting reasons for unequal gifts or using testamentary trusts. Meanwhile, a financial adviser can help structure assets (for example, via joint ownership or superannuation nominations) to ensure your intentions are better protected and your family’s financial security is maintained.
- Superannuation Death Benefits
Many Australians don’t realise superannuation isn’t automatically covered by their will. Instead, super is governed by the fund’s trust deed and your nominated beneficiaries. Failing to make a binding death benefit nomination (BDBN) or misunderstanding eligibility can lead to your super going to unintended recipients — or being left to the fund trustee’s discretion.
A lawyer can guide you through the legal rules on valid nominations and eligibility, while a financial adviser can help assess the tax implications of paying super benefits to different beneficiaries (such as adult children versus dependents) to reduce unnecessary tax leakage.
- Tax Consequences and Asset Structuring
Poor estate planning can lead to unexpected tax bills, including capital gains tax (CGT) on the sale of inherited assets or tax on superannuation death benefits. Certain assets, like investment properties or family businesses, may need careful structuring to pass efficiently to the next generation.
Lawyers and financial advisers working together can help you structure ownership — for example, using testamentary trusts — to protect vulnerable beneficiaries, preserve tax advantages for minors, and shield assets from creditors or divorce settlements.
- Enduring Powers of Attorney & Advance Care Directives
Estate planning isn’t just about death — it’s also about protecting you while you’re alive. Without an Enduring Power of Attorney (EPOA) and an Advance Care Directive (ACD) (or equivalent, depending on your state), no one may have the legal authority to manage your finances or make health decisions if you lose capacity. That could force your family to seek costly and time-consuming tribunal orders.
A lawyer ensures these documents are valid, enforceable, and tailored to your wishes. A financial adviser can help identify who is best placed to manage your assets and ensure continuity of your wealth strategy during incapacity.
Why Professional Advice is Critical
Estate planning is highly technical and deeply personal. Laws around succession, superannuation, and tax are complex and vary across jurisdictions. Mistakes can lead to outcomes that differ drastically from your intentions — sometimes leaving loved ones exposed to financial hardship or conflict.
By working together, a Lawyer and Financial Adviser provide a comprehensive solution:
- The Lawyer secures legal compliance, reduces risk of dispute, and protects your legacy.
- The Financial Adviser aligns estate plans with your wealth goals, minimises tax, and ensures long-term financial wellbeing for your beneficiaries.
Estate planning isn’t just about dividing assets; it’s about safeguarding your future and your family’s peace of mind. Taking expert advice early — and reviewing your plan regularly — ensures your wealth is protected and your wishes respected.
If this article has inspired you to think about your unique situation and, more importantly, what you and your family are going through right now, please get in touch with your advice professional.
This information does not consider any person’s objectives, financial situation, or needs. Before making a decision, you should consider whether it is appropriate in light of your particular objectives, financial situation, or needs.
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Disclaimer: The information contained in this article is general in nature and does not consider your personal objectives, financial situation or needs. Please consider whether the information is appropriate to your circumstance before acting on it and, where appropriate, seek professional advice.