Jointly held assets
Property held as joint tenants commonly passes by survivorship, not under the Will.
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Estate Protection Plan
A Will is one part of an estate plan. The real question is whether your affairs will work the way you intend.
Estate planning is about control while you are alive, succession when you are not, and whether family, business interests, superannuation and ownership structures will actually operate as you expect.
Why a Will is not the whole plan
A Will records instructions for the estate. It may not control everything you own.
Depending on how assets are held, a Will may not control jointly held property, superannuation, trust assets or company assets. The Estate Protection Plan looks at control, incapacity, succession and ownership together.
Superannuation
A superannuation death benefit is often paid under the fund’s rules and any valid nomination. The Will does not automatically control it.
Trust assets
Assets held in a discretionary or family trust are controlled by the trust documents and who holds office — not by a personal Will alone.
Company assets
Company property belongs to the company. What the Will can deal with is usually the shares or units, and even then company documents may constrain control.
Estate planning may therefore require review of:
- Will
- Executor choice
- Guardianship considerations
- Testamentary trusts
- Enduring powers of attorney
- Superannuation nominations
- Business interests
- Trusts and companies
- Jointly held assets
- Succession planning
- Beneficiary risk
- Incapacity planning
Who we help
Different families need different pathways.
Estate-planning pathways
Start with the problem, not a document name.
Estate Protection process
A staged process. Complexity varies.
Tax, superannuation, trust, company or financial-product issues may require an accountant or financial adviser. Those services are not automatically included in a legal estate-planning engagement.
01
Initial estate-planning conference
We identify what you are trying to achieve, who depends on the plan, and whether the work is planning, a review, or administration after a death.
02
Family, asset and ownership review
We work through family arrangements and how property, superannuation, companies, trusts and other interests are actually held — not only how they are described.
03
Risk and succession analysis
We identify where control, benefit or continuity could fail: incapacity, competing family interests, business dependence, or assets that pass outside the estate.
04
Structure and document recommendations
We recommend the documents and appointments that are actually required. Complexity varies. Not every client needs a testamentary trust or a business succession arrangement.
05
Drafting and review
Documents are prepared to the circumstances and reviewed with you before they are treated as ready to sign.
06
Execution and implementation
Signing is not a formality. Appointments, nominations and related steps still need to be completed for the plan to operate as intended.
07
Review triggers and future updates
We identify the life events that should prompt a later review. An estate plan is not a once-only document set.
When should you review your estate plan?
Life changes can make an existing plan obsolete.
Why review
Marriage
Marriage can revoke an existing Will in some circumstances and often changes who should benefit and decide.
Blended families
A surviving spouse and children from an earlier relationship can both have a legitimate claim on attention.
Jointly owned assets, superannuation, a right to occupy the home, who ultimately inherits, and who should act as executor or trustee all need to be considered together. There is no single structure that is right for every blended family.
- Surviving spouse or partner
- Children from earlier relationships
- Jointly owned assets
- Superannuation
- Right to occupy or use assets
- Ultimate inheritance
- Executor and trustee selection
Business owners
What happens to the business if the owner dies or loses capacity?
Ownership, control, shares or units, trusts, co-owners and who can make decisions all sit beside the personal estate plan. This is legal succession planning, not accounting or financial-product advice.
- Ownership
- Control
- Shares and units
- Trusts
- Co-owners
- Successor decision-makers
- Key-person dependence
- Estate interaction
After a death
Someone has died — what happens next?
This is a different enquiry from preventative estate planning. Administration usually involves locating the Will, understanding the executor’s role, determining whether a grant of probate is required, identifying assets and liabilities, and then administering and distributing the estate. The right next step depends on the documents, the assets and the family circumstances.
Where probate or administration becomes contested, see Estate Disputes.
Estate lifecycle
Planning is only one part of the estate lifecycle.
We advise before and after death — from estate planning and succession through probate, administration and disputes.
03
Resolve
Will and estate disputes, claims involving estates, probate disputes and executor or beneficiary issues.
The estate-planning team
Direct access to the lawyers doing the work.
Dr Ami-Lee Kelly is the public Wills & Estates lawyer for this service. William Billings is director and co-founder of Octagon Legal, which operates Will & Estate Lawyers.
Dr Ami-Lee Kelly
Lawyer — Wills & Estates
WillsProbateEstate Planning
Focused wills and estates legal capability across planning, incapacity appointments, probate, succession and related estate matters.
Practice leadership: William Billings, Director & Co-Founder, Octagon Legal.
Knowledge Centre
Orient before you enquire.
Estate Disputes
Blended families and estate disputes
A sensitive general guide to why blended family arrangements can give rise to estate disputes in Victoria, and how careful process helps.
Read topicEstate Disputes
What is a probate caveat?
General information on probate caveats in Victoria — what they are at a high level, why they are used carefully, and why procedure matters.
Read topicEstate Disputes
What happens when a Will is disputed?
A calm overview of how Will and estate disputes can develop in Victoria, from early correspondence through to possible resolution pathways.
Read topicEstate Disputes
Can a Will be contested in Victoria?
General information on what it can mean to contest a Will in Victoria, and why eligibility, facts and process all matter.
Read topicTestamentary Trusts
Is a testamentary trust right for your family?
A measured overview of when families may consider a testamentary trust, without assuming tax or protection outcomes.
Read topicBusiness Succession
What happens to a business if an owner dies?
A high-level look at ownership, control and continuity issues when a business owner dies, and why personal and business planning must work together.
Read topicDirect answers
Frequently asked questions
Do I need a Will?
Most adults with assets, dependants or specific wishes should have a current Will. Whether a simple Will is enough, or whether the plan also needs incapacity appointments, trusts or business arrangements, depends on your family and how your assets are held.
What happens if I die without a Will?
Your estate is dealt with under intestacy rules rather than your own directions. Those default rules may not match your intentions, particularly in blended families, de facto relationships or where assets sit in companies, trusts or joint names. The precise outcome depends on the jurisdiction and the facts.
What is an Enduring Power of Attorney?
It is an appointment that can allow a trusted person to manage financial and legal affairs if you lose capacity. A Will does not do this. Financial appointments and medical decision-making are often separate. Suitability and form depend on your circumstances and the relevant state or territory.
What is a testamentary trust?
A testamentary trust is a trust created by a Will. Families sometimes consider one where an inheritance should be held with ongoing control — for example for minors, vulnerable beneficiaries or longer-term family arrangements. It is not automatically necessary, and it does not guarantee asset protection or tax outcomes.
Does my Will control my superannuation?
Not automatically. Superannuation often sits outside the estate and may be paid according to the fund’s rules and any valid binding nomination. A Will can be relevant, but it should not be assumed to control superannuation on its own.
What happens to jointly owned property?
Property held as joint tenants commonly passes to the surviving owner by survivorship, rather than under the Will. Property held as tenants in common is treated differently. How title is held can therefore change who receives the asset, independently of the Will.
How often should I update my Will?
Review after marriage, separation, a new relationship, birth or adoption, a significant property or business change, an inheritance, the death of an executor or beneficiary, a material change in wealth or superannuation, or a change in health or capacity. There is no single safe interval for every person.
What happens to my business if I die?
That depends on the ownership structure, any shareholders’ or partnership arrangements, who can control the entity, and how the estate plan interacts with those documents. A Will does not automatically keep a company running or transfer control. Accounting and financial advice may be needed alongside legal succession planning.
What is probate?
Probate is the court process that can confirm a Will and an executor’s authority to deal with estate assets. Whether a grant is required depends on the assets, the institutions involved and the circumstances. It is an administration issue after death, not a substitute for planning during life.
How long does probate take?
Timeframes vary with the estate, the completeness of documents, the court and whether the application is straightforward. There is no reliable standard period that applies to every estate. An executor should obtain advice before acting if the position is unclear.
Can an executor also be a beneficiary?
Yes. It is common for a spouse, adult child or other beneficiary to also be appointed as executor. Whether that is suitable depends on the people involved, the estate’s complexity and whether conflicts of interest are likely.
Do blended families need different estate planning?
Often the issues are different, even if the documents have similar names. Planning may need to address a surviving spouse, children from earlier relationships, jointly owned assets, superannuation and who should control the estate. There is no single structure that is right for every blended family.
Start with the circumstances, not a template.
A confidential enquiry lets the practice understand what you are trying to achieve before recommending the next step.