We are experienced with a range of different circumstances and prepare Wills for people with straight-forward and more complex circumstances, but there are a few exceptions. 

We will not be able to prepare a Will for the following circumstances: 

• Wills and / or Powers of Attorney appointing another professional such as a solicitor, accountant, financial planner or other trustee company.

• Where the testator wishes to set up family discretionary trusts in their Will with a focus on tax minimisation and asset protection for beneficiaries.

  • These trusts often enable the trustee to distribute between a wide range of potential beneficiaries. However, we do prepare trusts (including discretionary trusts) for vulnerable and incapable adults. 

• Contracts for mutual Wills (except if you and your spouse have previously made contracts for mutual Wills with NSW Trustee and Guardian and you are both returning to update your Wills).

  • An example of contracts for mutual Wills is where  spouses (often in a second marriage or second relationship) agree to make their Wills in a certain way and agree that upon the death or incapacity of one of them, the other cannot make a new Will which reduces the provision to their spouse or their spouse’s children/grandchildren.  

• Wills for clients who own businesses, except where the client is:

  • a sole trader

  • the sole director/shareholder of a private company through which the business operates

  • the clients are spouses and they are the only directors and shareholders of a private company through which the business operates. 

• Wills dealing with overseas assets, except in limited circumstances, for example, if the overseas assets are of low value and do not include real estate or if the assets are in certain limited overseas countries.

  • If you have overseas assets we are still able to make your Will dealing with your Australian assets.

  • It is advisable that you consult a suitably qualified lawyer or Will maker in the overseas jurisdiction to obtain advice and put a Will in place dealing with your overseas assets. 

If you own assets of financial value overseas (including real estate, shares or bank accounts) we recommend you make a separate Will dealing with those overseas assets, rather than having one Will expressed to deal with all assets.

NSW Trustee and Guardian is able to provide advice regarding your Will so far as it deals with your assets in Australia. However we are not able to give advice as to whether your Will is effective to dispose of your overseas assets. The inheritance laws in other countries may be significantly different to those in Australia.

For example, some countries have laws that result in certain family members being automatically entitled to a specified share in your estate regardless of the terms of your Will.

There may be laws regarding who may contest your Will and taxation laws that may impact your estate and your beneficiaries. There may even be different requirements for the execution of a valid Will.

For these reasons it is recommended that you make a Will dealing with your Australian assets and that you retain a person who is qualified in the laws of the country where your other assets are held to prepare a Will dealing with those assets.

This approach ensures that you obtain professional legal advice in each country, giving proper consideration to such issues as the appointment of executors, the local procedures for estate administration, taxation implications such as inheritance tax and other inheritance laws.

Having separate Wills dealing with assets in the different countries will minimise the chance of administrative difficulties occurring after your death, which can occur when the original Will is held in one country while there are other assets in another country that need to be distributed. If there is a separate Will for each country, this means that authority to administer the estate (in Australia called probate) can more easily be obtained and with less delay.

In 2015 Australia became a signatory to an International Convention in relation to International Wills. Not all countries are signed up to the Convention, but for those countries that have signed up, there is a standard form of Will that will be accepted as a validly executed Will. However, the law in each country still applies in respect of the administration of the estate and so issues may still apply.

We recommend that if you have assets of financial value overseas that will need to be formally administered after your death, you have separate Wills dealing with your assets in each country.

An executor is the person or organisation responsible for managing your assets according to the directions in your Will when you pass away. It is important to choose an executor who understands the legal, financial and taxation implications and can maintain independence if there are disputes.

Custom Wills may include any of the following:

• Choosing 4 or more beneficiaries to receive a gift
• Dividing gifts into sub-parts
• Using life insurance for paying off debts
• Ownership of overseas assets

Click here a full list of inclusions.