Estate planning Malvern — wills, trusts and succession for multi-generation families

Many of the families we work with in Malvern have been here a long time — the home has been in the family for decades, the share portfolio has been compounding for longer, and there's often a family trust set up in the 1980s or 1990s that's quietly become the largest asset in the picture. The estate-planning challenge isn't usually about money — it's about handing all of that down to the next generation thoughtfully, without causing a fight.

At a glance — estate planning in Malvern

The trust-succession question most Malvern families haven't been asked

If your family has a discretionary (family) trust set up some time in the 1980s, 1990s or 2000s — and many Malvern families do — there's a question we need to answer that most general lawyers don't think to ask: who becomes the appointor when you go?

The appointor (or principal) is the person who can hire and fire the trustee. It's the real source of control of the trust. The role doesn't pass by your will — it passes by whatever the trust deed says, and an old deed may say something problematic, vague, or simply nothing useful. The trust assets — often the family's largest pool of wealth — are then effectively controlled by whoever inherits that appointorship. Getting it wrong can put the wrong person in control of millions of dollars, decades of compounding, and the family's main income stream.

That's the conversation we have with multi-generation Malvern families before we draft the will.

What we cover

• Carefully drafted wills, including specific bequests, family-home provisions, executor and trustee appointments.
• Testamentary trusts — to hold inheritances for adult children with their own marriages and bankruptcies and divorces to navigate; particularly powerful for protecting capital that's been compounded in the family for years.
• Trust-succession deeds — proper, considered transition of the appointor role of the family trust, coordinated with the rest of the estate plan.
• Family-provision risk planning — adult children with standing under Part IV; we identify the risk and document the reasoning behind any unequal distribution.
• CGT and asset-base planning — long-held family homes and shares often have very low cost bases; passing them via testamentary trust preserves the CGT-free principal residence exemption and the discount where it's available.
• SMSF death benefits — properly executed binding nominations.
• Enduring Power of Attorney + Medical Treatment Decision Maker documents.

When to come and see us

• You set up a family trust years ago and have never thought about what happens to the appointor.
• A long-held family home is finally being sold or downsized.
• Adult children are entering their own marriages and divorces — you want their inheritance protected.
• A parent is starting to slow down and the family needs to think about capacity-loss documents.

Frequently asked questions

Do I really need a lawyer to draft a will, or is a DIY kit enough?

For straightforward small estates a kit can technically work, but the cost of getting it wrong is enormous — invalid execution, ambiguous wording, missed superannuation, missed family-provision risk. For most families in Malvern, where there are real assets, blended-family considerations or a business, paying a lawyer once costs less than what a contested estate or a probate dispute will eventually cost the people you love.

What's a testamentary trust and do I need one?

A testamentary trust is a trust created by your will that holds your estate for the benefit of your beneficiaries (often your children or grandchildren). The main benefits are tax effectiveness (income to minors is taxed at adult rates inside a testamentary trust), asset protection (the assets are not personally held by the beneficiary so they're harder to lose in divorce or bankruptcy), and control (you can stage when beneficiaries receive capital). It's not for everyone — but for families with reasonable wealth or business interests, it's often worth the additional drafting cost.

How often should I update my will?

Update it when life materially changes: a separation or divorce, a new partner, a child or grandchild born, a death of a named beneficiary or executor, a significant change in assets (buying a business, selling the family home), a move interstate or overseas. As a general rule, if you can't remember when you last looked at your will, it's probably time.

What's a Family Provision claim and why does it matter to my estate plan?

Under Part IV of the Administration and Probate Act 1958 (Vic), certain people (children — adult and minor, a spouse, a former spouse in some cases, a dependent) can challenge a will on the basis that adequate provision wasn't made for their proper maintenance and support. The Court can re-order the estate. Good estate planning anticipates this — we identify who has standing, what the realistic claim risk is, and structure the estate (often via testamentary trust, sometimes with statements of wishes, sometimes with inter vivos gifts during life) to minimise the disruption.

Should I appoint a professional executor or a family member?

It depends on the complexity. A family member who is organised and on good terms with the other beneficiaries is often the right choice for straightforward estates. For complex estates — business interests, blended families, beneficiaries who don't get along, significant philanthropic bequests, or assets in multiple jurisdictions — a professional executor (a solicitor or a trustee company) takes the burden off the family and provides neutrality. We can discuss the right choice for your circumstances.

What's an Enduring Power of Attorney and a Medical Treatment Decision Maker — and do I need them?

Yes. A will only operates after you die. An Enduring Power of Attorney (financial and/or personal) appoints someone to make decisions for you if you lose capacity. A Medical Treatment Decision Maker (under the Medical Treatment Planning and Decisions Act 2016 (Vic)) appoints someone to make medical decisions. Without these, your family may need to apply to VCAT for an administration or guardianship order — which is slow, public and stressful. Putting both in place at the same time as your will is straightforward and brings real peace of mind.

The family trust deed is from the 1980s — does it need updating?

Often yes. Older deeds frequently contain a "vesting date" (often 80 years from the deed) that's now uncomfortably close, may not have a modern definition of beneficiaries, may not properly contemplate an appointor succession, and may need to be amended to deal with current foreign-beneficiary tax rules and the streaming of income. Updating it is sometimes a simple variation, sometimes more involved. We'll review the deed alongside the estate plan.

My family home is worth a lot — does that change the estate plan?

Yes, particularly in Malvern where many homes have appreciated significantly over decades. We look at whether the home should pass directly under the will, through a testamentary trust, by survivorship to a spouse, or via inter vivos gift during life. Each has different tax, asset-protection and family-provision consequences. There isn't one right answer — there's the answer that fits your family.