Key Terms
What is a Standard Will?
A standard Will is a straightforward legal document that sets out how your estate will be managed and distributed after your death.
Generally, a Will only deals with estate assets, which ordinarily consists of assets in your personal name only.
This typically includes things like:
- bank accounts in your sole name
- Personal belongings
- Real estate owned solely by you.
Accordingly, a Standard Will, will only deal with the distribution of your estate assets (not your non-estate assets) and typically includes:
Appointment of an Executor
Appointment of an Executor
You nominate one or more trusted individuals to act as your executor. The executor is responsible for administering your estate, including carrying out your wishes as set out in the Will.
It is also common to appoint an alternative executor in case your first choice is unable or unwilling to act.
Distribution of Your Estate
A standard Will typically provides for your estate to be:
- left entirely to a single beneficiary (e.g. your spouse); and/or
- divided equally between multiple beneficiaries, most commonly your children, when the person nominated earlier, generally your spouse, dies before you.
This type of Will is suitable for individuals with relatively straightforward circumstances and who wish to ensure their estate is distributed in a clear and uncomplicated manner.
What is a Testamentary Trust Will?
What is a Testamentary Trust Will?
A Testamentary Trust (TT) Will is a type of Will that creates one or more trusts after you die. It combines a standard will with built-in trust structures.
The trust(s) do not exist while you’re alive—it is created by your Will after death.
Why people use Testamentary Trust Will?
1. Asset protection
- Divorce settlements
- Bankruptcy creditors
- Legal claims
2. Tax advantages
2. Tax advantages
3. Control and flexibility
The Trustee(s) can decide who receives income and/or capital and when and how much
Useful for:
- Blended families
- Vulnerable beneficiaries
Non-Estate Assets
A will generally does not deal with the following assets (often referred to as non- estate assets):
Jointly owned assets
Jointly owned assets
Assets held jointly with another person (such as a house or bank account) usually pass automatically to the surviving owner, regardless of what your Will says.
Superannuation
Superannuation (including any life insurance held within your superannuation fund) is generally not part of your estate and is not automatically distributed under your Will.
Instead, it is dealt with under superannuation law.
In most cases:
- If you have made a valid binding death benefit nomination, your superannuation fund trustee is required to pay your superannuation in accordance with that nomination.
- If you do not have a valid binding nomination in place, your superannuation is usually distributed at the trustee’s discretion. This means the trustee will decide who receives your superannuation, in accordance with relevant laws and the rules of the fund.
Family trust assets
Family trust assets
Assets held in a family trust are generally not part of your personal estate, as they are owned by the trust, not by you personally. These assets are dealt with in accordance with the terms of the trust.
Other assets with nominated beneficiaries
Certain assets, such as some insurance policies, may also be paid directly to a nominated person.
What is an Enduring Power of Attorney (Financial and Personal)?
An Enduring Power of Attorney (often called an “EPOA”) is a legal document that allows you to choose someone you trust to make decisions for you if you are unable to do so yourself.
In Victoria, it can cover two main areas:
This allows your appointed person (called your attorney) to manage things like your bank accounts, paying bills, dealing with property, and handling other financial affairs.
The power is described as “enduring” because it continues to operate even if you lose decision-making capacity due to illness, injury, or age.
You can choose when it starts — either immediately, or only if you become unable to make your own decisions, or in specific scenarios.
Can I nominate more than one attorney?
When making an Enduring Power of Attorney (Financial and Personal Matters) in Victoria, you may appoint more than one person to act as your attorney.
If you choose to appoint multiple attorneys, you can decide how they are to make decisions. The main options are:
1. Jointly
1. Jointly
Your attorneys must act together on all decisions.
This means they must all agree before any action is taken.
- Provides greater oversight and accountability
- Can be less practical if your attorneys are not readily available at the same time or disagree
2. Jointly and Severally
Your attorneys can act together or independently.
- Offers flexibility, as any one attorney can make decisions on your behalf
- Commonly used where convenience and efficiency are important
- Requires a high level of trust between you and your chosen attorneys
3. Jointly and severally, except must act jointly for major decisions
3. Jointly and severally, except must act jointly for major decisions
You can tailor the arrangement so that:
- certain important decisions (for example, selling property) must be made jointly, while
- other day-to-day matters such as paying bills, can be managed by one attorney
This provides a balance between oversight and flexibility.
4. Alternative (Substitute) Attorneys
You can also appoint alternative attorneys who will step in if your original attorney(s) are unable or unwilling to act.
This option is commonly adopted for couples. You appoint each other as the original attorney, and your child or children as your alternate attorney(s), if your spouse is unable to act.
What is a Medical Treatment Decision Maker Deed?
A Medical Treatment Decision Maker Deed is a legal document that allows you to appoint someone you trust to make medical decisions on your behalf if you are unable to make those decisions yourself.
In Victoria, this person is called your Medical Treatment Decision Maker.
They may be required to make decisions such as:
- whether to consent to or refuse medical treatment
- decisions about surgery or ongoing care
- end-of-life treatment choices, based on your wishes and best interests
While you can appoint more than one person, only one Medical Treatment Decision Maker can act at a time. Your alternate Medical Treatment Decision Maker will step in if your first-nominated person is unable or unwilling to act and so on.
This document only comes into effect if you no longer have the capacity to make your own medical decisions.
You can also provide guidance about your values and preferences, which helps your appointed decision maker understand the types of treatment you would or would not want.