Getting Your Affairs In Shape: Your Essential Guide to Estate Planning
/At our recent CREW webinar Emma Woolley from Hall and Wilcox pointed out that estate planning isn’t a topic most people rush to discuss but “everyone is going to die. It’s a 100% certainty.”
Rather than being morbid, Emma encourages us to see estate planning as empowering: the chance to make clear, personal decisions about what happens to our assets, our family and our digital lives when we’re no longer here.
If you don’t choose, the law chooses for you
If you die without a will, your state’s intestacy laws decide who gets what and they might not align with your wishes.
Common unintended outcomes include children from prior relationships inheriting before a current partner, estranged relatives benefiting, partners receiving far less than expected and long delays and increased administration costs.
Emma shared a real example: A man who wrote his own (beautifully handwritten) will but didn’t have it properly witnessed and didn’t name an executor. The result was a process that should have cost less than $5,000 ballooned to $35,000–$45,000.
Your will is not a “set and forget” document
Life changes and so should your will. Emma recommends reviewing your plan every 3–5 years, or whenever key events occur such as marriage or divorce, birth of children or grandchildren, buying/selling property, changes to family relationships, major financial changes, receiving an inheritance, health changes, blended families or business growth or sale - to name a few.
The most common problem she sees are executors who are no longer appropriate, ex-partners, ex-in-laws, or people you simply no longer speak to.
The biggest issue wealthy families fear: relationship breakdown in the next generation. Emma regularly sees parents worried that inheritances will be lost in divorce, a child’s partner will benefit from the family’s wealth or future generations may be unintentionally disinherited.
With a national divorce rate of nearly 1 in 3, and most divorces initiated by women, the concern is legitimate. Can you fully protect inherited wealth from the Family Court? No. There is no structure, not even the most watertight will, that guarantees absolute protection.
So, what can help? The only mechanism that creates certainty is a Binding Financial Agreement (BFA). Often called a “prenup,” but can be created before a relationship, during a relationship or after separation.
Families sometimes implement this as a “family policy”, not about the partner, but about protecting generations of wealth. It’s awkward, yes. But Emma compares it to insurance. You hope you’ll never use it, but it’s there if you need it.
The bank of Mum and Dad: loans, not gifts
With the “Bank of Mum and Dad” now Australia’s 9th largest mortgage lender, parents often help children buy property. Emma is clear: it is likely to be better to assist family by way of a loan rather than a gift if you want a chance of ensuring the money isn’t lost in a divorce.
This means documenting the loan, securing it (for example, against the property), specifying repayment terms and clarifying in the will what happens to the loan on your death. This could preserve equality between siblings and potentially avoid costly disputes.
Planning for incapacity is as important as planning for death
Statistically, dementia is Australia’s leading cause of death. Emma highlighted the rapidly growing numbers of Australians living with cognitive decline.
You must plan for who will manage your finances, who will make medical decisions, and make decisions around where you will live and how your personal preferences will be honoured.
This requires different documents depending on your state:
Enduring Power of Attorney
Medical Treatment Decision Maker
Advance Care Directive
As Australian laws don’t align across states, some people need separate documents for each jurisdiction.
Disputes: Why people challenge wills and when they win
In Australia, in general terms disgruntled family members can challenge a will if:
They are “eligible” (for example, spouse, partner, child, sometimes stepchild), AND
They can demonstrate need, NOT fairness.
Courts don’t care about whether children are treated equally, whether someone “deserved” more or whether it feels unfair.
Courts care about whether a claimant has enough to live on, Centrelink dependence, health issues, poor financial decisions, disability and homelessness risk could all be relevant factors. Emma gave two notable examples:
Case 1: No extra money awarded
A daughter wanted a larger share because she believed equal division was fair. Outcome:
She failed. She couldn’t show need.
Case 2: Child awarded $3.2m
A child who had once threatened his parent with a crossbow still received millions, because he was dependent and unable to support himself. The lesson? Courts prioritise need, even when behaviour is terrible.
The future of estate planning: Digital assets
The rise of cloud storage, social media and online subscriptions has created a new challenge - who can access your digital life when you die? Important facts:
These assets don’t sit neatly in your will.
Access is determined by each platform’s terms and conditions.
Australia has no uniform legislation giving executors automatic access.
Emma advises to do a “dry run” of your death. Create an inventory of online accounts, subscriptions, cloud storage, social media, crypto, digital photos, email accounts etc. Don’t write passwords in your will (wills become public documents). Instead, record them separately, securely and make sure executors know where the list lives.
Final message: “Get in shape — and stay in shape”
Emma ended with a simple, powerful call to action:
Everyone needs an estate plan.
Everyone needs backup documents for incapacity.
Everyone needs to keep them updated.
Estate planning is not morbid, it’s practical, compassionate and empowering.