Having a modern estate planning Will prepared would address all the various shortcomings outlined in the previous edition issues while increasing the certainty that the Willmaker’s wishes are fulfilled as well as offering other major advantages to all beneficiaries. These include:

• Meeting obligations to children of prior relationships
  Ignoring this issue is may lead to court challenges to your Will which can be readily avoided with good advice tailored to your situation.
• Owned and controlled assets
  Modern estate planning Wills also provide the executor with the authority to take control of both the assets directly owned by the Willmaker as well as the assets controlled by him or her via other entities. This power ensures that all assets whether owned or controlled can be used to meet the intentions as expressed by the Will particularly when the estate is being distributed to the Willmaker’s children.
• Equality of distribution
  As mentioned previously the common intention in many families is to see estates distributed equally and another key provision found in modern estate planning Wills enables this to happen. There is a direction to the executor to take into account payments or benefits that individual beneficiaries may have received from other sources.
  
  To achieve proper equality the executor needs to be able to take into account such things as loans to particular beneficiaries which were made and documented by the Willmaker and which have not been repaid; any superannuation death benefits received by some but not all beneficiaries usually because some are tax dependants (ie under 18) and some are not; insurance payments received by some but not all beneficiaries; interests in family businesses entities that some beneficiaries might have received during the Willmaker’s lifetime etc.
• Testamentary Trusts
  Modern estate planning Wills contain provisions that allow executors to offer nominated beneficiaries the option of holding their inheritance via optional discretionary testamentary trusts. Some Wills in the past only created trusts where the nominated beneficiaries received capital and income at the discretion of the trustee or on other conditions created by the Will. However, current estate planning practice has moved away from the disadvantages of such a restricted approaches and freedom to control and manage their own trusts. Some Wills go further and offer a range of trust structures that can be utilised if the beneficiary has particular need for such provides each beneficiary the structures.
• Optional trust structures
  One recent option included in modern estate planning Wills following CGT and Land Tax concessions is a right of occupancy of the Willmaker’s family home which means a beneficiary can now inherit and live in the family home while holding it in a testamentary trust without capital gains or land tax disadvantages.
• Trust flexibility
  Of course, in this modern era beneficiaries under some estate planning Wills are given the option of not holding assets in a testamentary trust but in their own name – an option few are likely to take but it avoids the claim that the Willmaker is attempting to rule from the grave!
• Protected Trusts
  Another important advantage of testamentary trusts is the ability of a Willmaker to make provision for beneficiaries who may be vulnerable because of disability, being a spendthrift or suffering from some addiction eg alcoholism, drugs or gambling. Properly drafted such protected trusts can offer the beneficiary controlled support, however, consideration needs to be given, where a beneficiary receives government benefits, as to ways to reduce the risk of such benefits being lost or minimised.
• Special Disability Trusts
  Such trusts were introduced by the Federal Government in September 2006 to provide for a family member with significant permanent disability and who receives a Disability Support Pension. The provision is made via a trust and is to be applied solely for the care and accommodation of the beneficiary. Such trusts can be established during the benefactor's lifetime or via their Will.
  
  We have included such provisions in a number of Wills but we also provide flexibility by giving trustee the capacity to meet other normal expenses which cannot be paid out of the Special Disability Trust.
  
  We believe that such trusts will be very welcome by families with a member who qualifies for such support.
• Tax and asset protection
  Mention has been made of the substantial tax and asset protection disadvantages that flow from beneficiaries inheriting assets directly in their own name. These disadvantages can be avoided if the Will offers beneficiaries the option of inheriting via testamentary trusts established by the Will. However a futher, often overlooked, advantage is that such trusts can pass down through the generations for 80 years from the death of the Willmaker.
• Wider powers for executors
  Modern estate planning Wills should also ensure the executor has the authority to take into account specific arrangements the Willmaker entered into that could impact on the estate. These include business succession agreements, binding death benefit nominations and superannuation residues.
• Inclusion of trust rules in the Will
  Finally, a well constructed modern estate planning Will should offer those beneficiaries who wish to inherit via such trusts a comprehensive set of rules under which the trust can be operated so that they have flexibility as well as a clear understanding of the parameters they need to operate under. Such provisions are very important as the Will is a beneficiary’s trust deed. No other documentation is required or allowed, so the quality of the provisions will dictate how much use and enjoyment a beneficiary receives from their trust with minimum operating cost.

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