Wills and Estate Planning

Yes. In South Australia, anyone over 18 years old who has testamentary capacity can legally prepare their own will. However, even straightforward wills sometimes have complexities that might not be obvious at first, such as how assets are owned, dealing with superannuation, managing family trusts or providing for minor children.

A lawyer ensures that your will not only meets all formal legal requirements but also clearly and accurately reflects your intentions. At Grope Hamilton Lawyers, we help identify potential legal issues before they arise and reduce the risk of disputes or confusion in the future. Should complexities arise during probate, estate administration or disputes, our experienced team provides practical guidance and, where required, legal representation to support your family and ensure that your wishes are respected.

It's important to regularly review your will to make sure it accurately reflects your current wishes and circumstances. In South Australia, significant life events automatically affect your will. For example, marriage or registering a new relationship generally revokes your existing will, unless your will specifically states otherwise. Divorce or the end of a registered relationship typically removes provisions made in favour of your former spouse or partner.

You should also consider updating your will if your personal or financial circumstances change significantly, such as the birth of a child, the death of a beneficiary or executor or when you acquire or sell major assets.

In South Australia, the most straightforward way to update a will is to create a new one. We recommend reviewing your will every three to five years to ensure it remains valid and appropriate. At Grope Hamilton Lawyers, we provide clear guidance to help ensure your will remains legally effective and accurately reflects your intentions. Our experienced team can assist with drafting new wills or revocation documents and support you through every stage of the probate process or estate administration, addressing any issues promptly and with care if they arise.

An executor is the person appointed in your will to manage and distribute your estate after you pass away. Their primary duty is to ensure that your wishes as stated in your will are carried out correctly and in compliance with the law.

The responsibilities of an executor typically include:

• Locating and safeguarding the original will.

• Making funeral arrangements and organising disposal of remains according to your wishes.

• Applying for a death certificate, followed by probate through the Supreme Court, confirming their authority to act.

• Identifying, securing and valuing estate assets, including bank accounts, real estate, investments and personal belongings.

• Paying debts, funeral costs and taxes in accordance with legal priorities.

• Preparing detailed financial records and estate accounts.

• Distributing the remaining assets to beneficiaries as outlined in the will.

Executors have a duty to act carefully, responsibly and promptly. If disputes or claims arise concerning your will or estate, it is the executor’s role to represent the estate and, if necessary, defend the validity of the will or resolve any family provision claims.

Given the complexity and significant responsibility involved, many people choose to appoint a professional executor, often an experienced solicitor or trusted law firm. Appointing a legal professional as executor provides impartiality and expert knowledge in estate management, and it can significantly reduce the emotional and administrative burden on family and friends. At Grope Hamilton Lawyers, we act as professional executors, combining deep legal expertise with sensitivity and careful management to ensure that your estate is administered accurately, transparently and efficiently.

Our firm also supports family executors who may require professional guidance at any stage, whether through the probate process, managing complex assets or navigating any legal disputes that might arise.

Yes, in South Australia you may appoint multiple executors to jointly administer your estate. Executors share the legal responsibility for managing your estate according to your wishes, including obtaining probate, paying debts, managing assets and distributing your property to beneficiaries.

Appointing multiple executors has several advantages:

• Shared responsibility: Estate administration can involve significant work. Multiple executors can share tasks and offer mutual support during what can be an emotionally challenging process.

• Checks and balances: Having co-executors provides built-in accountability. Decisions require agreement among executors, reducing the risk of errors and ensuring transparent management of your estate.

• Diverse skills and knowledge: Appointing executors with different professional expertise or familiarity with family dynamics can enhance the efficient and effective administration of your estate.

• Continuity and flexibility: If one executor becomes unable or unwilling to act due to illness, death or personal circumstances, your other executor(s) can continue managing the estate without interruption.

However, appointing multiple executors can also present some challenges:

• Potential for delays: Disagreements among executors can slow down decision-making processes or require intervention from the court.

• Practical complications: Legal documents typically require signatures from all executors, which can create logistical challenges if they live in different locations.

• Increased risk of conflict: Differing opinions among executors could potentially escalate into disputes, complicating administration and possibly increasing costs.

When choosing executors, consider selecting individuals who have good communication skills, can collaborate effectively, and clearly understand the role's responsibilities. It may also be wise to appoint alternative executors as a backup, ensuring that your estate administration proceeds smoothly if your primary executors cannot act.

At Grope Hamilton Lawyers, we can help you assess your situation to determine if appointing multiple executors suits your circumstances, clearly draft your will to reflect your executor choices, and provide practical guidance to ensure the estate administration process is as efficient and straightforward as possible.

A testamentary trust is a special type of trust established in your will to protect your assets and manage how they are passed on after your death. Rather than giving your beneficiaries their inheritance outright, your assets are placed in the trust and managed by someone you appoint, known as the trustee. This structure allows you greater control over how and when the trust’s assets are distributed to your beneficiaries, based on the detailed instructions in your will.

Testamentary trusts can offer practical solutions to specific issues such as:

• Providing targeted financial support:
If you have minor children, dependents with disabilities or family members who may not be capable of responsibly managing significant sums, a testamentary trust allows you to structure your estate so funds can be gradually provided over time or only for specific purposes such as education, healthcare or living expenses.

• Minimising legal risk:
Assets held in a testamentary trust are generally protected from creditors, lawsuits and relationship breakdowns involving beneficiaries. Because assets remain in the trust rather than being owned directly by beneficiaries, they are less vulnerable to claims.

• Optimising financial outcomes:
With professional advice, testamentary trusts can strategically allocate trust income among beneficiaries, potentially achieving significant tax savings over time. They can also help preserve wealth for the longer term, ensuring your estate continues to support multiple generations.

While testamentary trusts can provide these valuable protections and financial benefits, their effectiveness relies heavily on careful and precise drafting. This requires specialist legal expertise. A poorly drafted testamentary trust may result in costly disputes, tax inefficiencies or may fail to achieve your intended outcomes.

When you work with Grope Hamilton Lawyers, we go beyond simply preparing a trust structure. We take the time to understand your family situation and asset profile in detail. Our lawyers have the knowledge and experience to carefully tailor your testamentary trust so that it reliably achieves your goals. We ensure it is both legally sound and aligned precisely with your wishes, protecting your legacy well into the future.

The probate process involves several key steps and can vary in length depending on the circumstances of the estate. In South Australia, probate is the official recognition by the Supreme Court that a deceased person’s will is valid and that the executor named in the will is legally authorised to administer the estate.

Typically, it takes around three to four weeks for the Court to process a properly prepared probate application if there are no complications. However, delays can occur if the application is incomplete, if the Court has questions (known as requisitions), or if the will is unclear or disputed.

The process itself involves gathering information about the estate’s assets and liabilities, preparing and lodging the application with the Probate Registry, and ultimately obtaining a grant of probate. This grant gives the executor the legal authority to manage the deceased’s assets, pay any debts, and distribute the estate according to the will.

In some cases, such as when assets are jointly owned with a spouse or partner, probate may not be required. However, if the estate includes significant assets or the will is complex, probate is often essential to provide legal certainty and to protect the executor from personal liability.

At Grope Hamilton Lawyers, we guide executors through each step of this process and ensure that applications are accurate and complete. We also assist with any challenges or disputes that may arise, providing clear and practical guidance. By working with an experienced probate lawyer, you can reduce the risk of delays or complications and ensure the estate is administered smoothly and in accordance with the law.