A practical guide to Wills and guardianship in NSW

Planning for the future by getting your affairs in order ensures your wishes are clear and can save your family from stress and confusion.

If you pass away without a Will, you are considered to have died "intestate". When that happens, your assets are divided according to a strict legal formula under the Succession Act 2006. That formula is unlikely to match your personal wishes. This guide will walk you through the essentials of Wills and guardianship, covering what they are, why they are important, and how to set them up. For over a century, NSW Trustee and Guardian has been helping people across the state with these matters.

What are wills and enduring guardianship?

A Will and an enduring guardianship are complementary legal documents. They cover different stages of life to create a plan that protects your finances and personal wellbeing. A Will handles matters after your death, while an enduring guardianship ensures you are cared for if you can no longer make decisions for yourself.

The role of a will

A Will is a legal document that spells out exactly what you want to happen to your property and assets (your "estate") after you die. It serves as your final instruction manual for your loved ones.

Its main jobs are to:

• Name your beneficiaries, which are the people or organisations who will inherit your assets.
• Appoint an executor, who is the person or organisation responsible for carrying out your wishes.
• Nominate guardians for any of your children who are under 18.

Without a valid Will, your estate gets distributed according to the rules of intestacy. These strict legal rules don't consider your personal relationships or unique family situation, which can lead to tough outcomes for the people you leave behind.

The role of an enduring guardian

An Enduring Guardian is someone you legally appoint to make important personal, lifestyle, and health decisions for you if you ever lose the ability to make them yourself. They become your representative when you are unable to communicate your own decisions.

This role is different from a Power of Attorney, which is all about managing your financial and legal affairs. An enduring guardian focuses on your wellbeing. They can make decisions about things like:

• Where you live, for example, staying at home with support or moving into aged care.
• What kind of healthcare or medical treatment you receive.
• What personal services, like in-home care, you might need.

This appointment only becomes active if you are unable to make your own decisions. Until then, you remain in charge.

Essentials of making a will

A well-written Will provides a clear roadmap for your family that prevents confusion, reduces the potential for disputes, and simplifies the process during a difficult time.

Key decisions: Choosing an executor and beneficiaries

One of the first decisions to make is choosing your executor. This person has a significant role. They're responsible for everything from finding all your assets and paying off debts to handling legal paperwork and distributing your estate. It can be a time-consuming and emotionally draining role, especially for someone who is also grieving. You can appoint a spouse, an adult child, a trusted friend, or a solicitor.

Appointing a professional, independent executor like NSW Trustee and Guardian is an option. This can be beneficial if your financial affairs are complex or if there is concern about family disagreements.

Next, you need to clearly identify your beneficiaries. These are the people who will inherit from your estate. It is important to be specific with names and details to avoid confusion.

And if you have kids under 18, appointing a guardian is a critical part of your Will. This is the person who will care for them if you and their other parent pass away. This is a significant responsibility, so it is important to discuss it with your chosen person to make sure they're willing and able to take on the role.

What to include: A checklist of assets and wishes

When you sit down to plan your Will, it helps to have a list. Here are a few things you should think about including:

• Your assets: This covers everything you own, like property, bank accounts, investments, cars, and any personal items with sentimental or financial value, like jewellery or art.
• Your liabilities: Your executor will need to pay off any outstanding debts, like mortgages, credit cards, or loans, from your estate before anything is distributed.
• Superannuation and life insurance: These often sit outside of your Will. You usually need to nominate a beneficiary directly with your super fund or insurance provider, so it's a good idea to check on that.
• Care for your pets: You can name a carer for your pets and even set aside some money in your Will to help cover the costs of their care.
• Specific gifts and wishes: If you want a particular item to go to a specific person, you should state that clearly. You can also include instructions for your funeral if you have strong preferences.

Common pitfalls to avoid

Two of the most common mistakes are using a DIY Will kit without getting it checked by a professional and, just as importantly, not updating the Will.

As life circumstances change, your Will should be updated accordingly. It’s a good idea to review your Will every 3-5 years or whenever a major life event happens. This could be getting married or divorced, having a child, or a big change in your financial situation. Keeping it current ensures it always reflects your current wishes.

The role of enduring guardianship

In addition to planning for what happens after your death, it is also important to plan for your own future. Appointing an enduring guardian ensures that if you are unable to make decisions for yourself, someone you trust can make them for you, guided by your values.

Responsibilities of an enduring guardian

An enduring guardian makes decisions about your health and lifestyle, but they cannot manage your finances. They can’t make or change a Will for you, vote on your behalf, or handle your money. Their focus is purely on your personal welfare.

You can also give your guardian specific directions to help them. For instance, you can outline your preferences about certain medical treatments or where you’d prefer to live if you need care. This helps them make choices they know you’d be comfortable with. No matter what, an enduring guardian is legally required to act in your best interests.

Enduring guardianship vs. Power of Attorney

These two roles are often confused, but they have distinct functions. To clarify the differences, this infographic provides a quick breakdown:

Having both documents in place creates a comprehensive plan. Services like NSW Trustee and Guardian can help you prepare both your Will and your enduring guardianship appointment at the same time, ensuring both documents work together.

Choosing the right person for the role

This is an important decision, so it requires careful consideration. You should choose someone you trust completely who understands you and your values. They need to be willing to take on the responsibility and be able to make calm, level-headed decisions during difficult situations.

It is also advisable to appoint more than one guardian to act together, or to name a substitute in case your first choice can't act for some reason. It's important to know that while you can appoint a trusted person, NSW Trustee and Guardian cannot be appointed as an enduring guardian; this role has to be filled by an individual.

How to formalise your plans

Once you’ve thought about what you want, the next step is to make it official. Getting professional help ensures your documents are legally sound and valid when needed.

Getting professional help

The process to get started is straightforward. You'll gather your information (like a list of your assets and the names of your chosen executor and beneficiaries), book an appointment, and then sit down with a professional Will maker or solicitor. They’ll talk through your situation, answer your questions, and then draft the legal documents for you to review and sign.

To make things easy, you can book an appointment with NSW Trustee and Guardian at one of their 9 offices, visit one of over 100 pop-up service locations across the state, or even meet with them via video call from home.

NSW Trustee and Guardian service options

Using a professional service like NSW Trustee and Guardian can ensure that your documents are prepared correctly and are legally valid. They offer a range of clear, fixed-fee services so you know exactly what to expect.

Here’s a look at their options:

It’s also worth noting that they offer a fee exemption for eligible pensioners, making these planning services accessible to more people.

Storing your documents safely

Once your Will is signed, you need to keep it somewhere safe where your executor can find it. If your original Will is lost, damaged, or destroyed, it can cause significant complications and legal costs for your estate.

A secure storage solution like the NSW Trustee and Guardian's WillSafe service is an option for secure storage. For a small one-off fee (from $29 for one document or $49 for up to three), you can store your important documents securely, ensuring they’re protected and accessible when the time comes.

While official channels provide one perspective, investigative reports offer a deeper look into the potential complexities and challenges within the public guardianship system. The following report explores real-life stories and highlights the importance of being fully informed when making these critical decisions.

Finalising your estate plan

To summarise, a Will manages your assets after death, while an Enduring Guardian protects your personal wishes if you become unable to make decisions. Having both documents professionally prepared helps ensure your family is protected and your wishes are respected.

Planning ahead removes doubt and uncertainty, allowing your family to focus on other matters during a difficult time. With expert guidance, the process can be straightforward and secure.

You can learn more or book an appointment with an estate planning expert on the NSW Trustee and Guardian website.

Frequently Asked Questions

Why is it so important to have a plan for Wills and guardianship in NSW?

Having a clear plan for Wills and guardianship in NSW ensures your assets are distributed according to your wishes and that decisions about your health and lifestyle are made by someone you trust if you can't make them yourself. It saves your family from potential legal headaches, stress, and confusion during an already difficult time.

What happens if I don't have legally prepared Wills and guardianship in NSW?

If you pass away without a Will, your assets are divided based on a strict legal formula, which might not reflect your wishes. Without an enduring guardian, the court may need to appoint someone to make decisions for you, and that person may not be who you would have chosen.

How often should I review my documents for Wills and guardianship in NSW?

It's a good idea to review your documents for Wills and guardianship in NSW every 3-5 years, or after any major life event. This includes things like getting married or divorced, having children, or significant changes to your financial situation.

Can I appoint the NSW Trustee and Guardian for both parts of my Wills and guardianship in NSW?

You can appoint NSW Trustee and Guardian as the executor of your Will. However, for the guardianship part of your Wills and guardianship in NSW, you must appoint an individual you trust. NSW Trustee and Guardian cannot be appointed as an enduring guardian.

What's the main difference between a Power of Attorney and the guardianship part of Wills and guardianship in NSW?

A Power of Attorney handles your financial and legal matters. In contrast, the guardianship component of Wills and guardianship in NSW deals with personal, lifestyle, and healthcare decisions. You really need both for a complete plan.

How much does it cost to set up Wills and guardianship in NSW with a professional service?

Professional services like NSW Trustee and Guardian offer fixed-fee packages. For example, their Essentials Package, which includes a standard Will, Power of Attorney, and Appointment of Enduring Guardian, costs $693. They also offer fee exemptions for eligible pensioners.