Frequently Asked Questions | Rayners Lawyers

Welcome to our FAQs

Planning for the future comes with a lot of questions, and we’re here to make the answers simple. Explore our collection of short videos and guides below, where we break down common questions about Powers of Attorney, Testamentary Trusts, and Enduring Guardianship.

Each video is answered by Kirsty Rayner, Principal Solicitor, who brings years of specialist education and experience to help you understand your options. Our aim is to give you clear, practical insights so you can make confident decisions for yourself and your loved ones.

Will FAQs Power of Attorney FAQs Enduring Guardianship FAQs Testamentary Trust FAQs

Will FAQs

Who should I appoint to look after my minor children?

Usually, it is best to nominate the person or people you trust implicitly today. If that happens to be your parents, and you’re worried about their age, we can still nominate them but also include a backup to cover the scenario of them being unable or unwilling.

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Who should I appoint as my Executor?

The executor is the person responsible for organising your funeral, telling loved ones you’ve passed away, engaging a solicitor to obtain probate, collecting your assets, discharging any debts and making sure the beneficiaries in your Will receive what they’re entitled to.

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Who should I leave my inheritance to?

If you’re in a vanilla, nuclear family, you may wish to nominate your partner to receive your whole estate in the first instance, and your kids to receive your estate equally in the second instance. If you’re flying solo, you will need to nominate who you wish to inherit your estate in the first instance, and if there’s more than one person, you need to advise the split.

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What does an Executor actually do?

The executor plays a vital role in managing and finalising a deceased person’s estate according to the terms of the Will. This includes locating assets, paying debts, obtaining probate, protecting the assets, managing taxation obligations, defending the Will and distributing the estate to beneficiaries.

Who Is the Beneficiary in a Will or Trust?

A beneficiary is the person or entity entitled to receive assets from a Will or trust. Understanding who your beneficiaries are is essential to ensuring your estate is distributed according to your wishes.

In this video, we explain the role of beneficiaries and how proper estate planning protects their interests.

How to Make a Formal and Legally Valid Will

Creating a Will that is legally valid is essential to ensure your wishes are honoured and your estate is distributed correctly. This involves meeting specific legal requirements to avoid disputes or invalidation.

In this video, we guide you through the key steps to making a formal and valid Will in NSW.

Costly Estate Planning Mistakes

Most people don’t realise they’ve made a mistake with their estate plan until it’s too late.

From outdated Wills to missing legal documents, these common errors can leave your family exposed to stress, costs, and delays.

In this video, we unpack the most frequent estate planning mistakes we see as Wills and Estates lawyers in NSW and how you can avoid them.

For peace of mind that your estate plan is solid and protects your loved ones, this is essential viewing.

Let’s talk about costly estate planning mistakes that could have easily been avoided but ended up costing time, money and energy.

Top Estate Planning Mistakes that cost thousands | Part 2

Think your estate plan is bullet proof? Think again. Part 2 uncovers the common mistakes many individuals and families overlook that could put your legacy and loved ones at risk.

Did You Know We Offer Legal Services Worldwide?

Did you know Rayners Lawyers provides estate planning services worldwide?

No matter where you are, we’re here to help you create a valid Will and manage your estate planning needs with expert legal advice.

Serving clients locally in Port Macquarie, across NSW, and internationally — your legacy matters to us, wherever you call home.

Tired of Feeling Overwhelmed by Estate Planning?

Feeling overwhelmed by estate planning? You’re not alone.

In this video, I explain the most common causes of confusion like Wills, Powers of Attorney, Executors, and more and how to approach them with clarity and confidence.

Whether you're starting from scratch or reviewing an existing plan, this is a practical, lawyer-led guide to help you take control and make informed decisions.

Power of Attorney FAQs

What is a Power of Attorney & Why do I need one?

A Power of Attorney is a very important and powerful legal document that allows someone, known as your attorney, to make legal and financial decisions on your behalf when you’re not able to or simply do not want to.

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Who should I nominate as my Power of Attorney?

The most important decision to make when preparing your Power of Attorney is who to appoint as your attorney. Because your attorney will be able to do anything you can do with your property and finances, your attorney should be someone you trust implicitly.

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When does a Power of Attorney start?

You can decide whether you would like your Power of Attorney to start immediately upon your attorney accepting their appointment by signing the document OR you may elect for your Power of Attorney to start only in the event that you lose capacity and are deemed to be unable to manage your financial and legal affairs.

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When does a Power of Attorney end?

A Power of Attorney will end:

When you die

If you cancel or revoke it (while you still have capacity)

If you become bankrupt

If one of your joint attorneys dies or loses capacity (unless the document states the other attorney can continue to act alone)

If a court or tribunal orders that it ends

It’s also possible to set an expiry date or include specific conditions for when it should stop.

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Will I lose my rights if I make a Power of Attorney?

No. As long as you have capacity to make your own legal and financial decisions, you will still have the authority to deal with your own property and money.

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Do I need a Power of Attorney?

The consequences of not having a Power of Attorney are best illustrated using a case study.

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What powers can I give my attorney?

The law sets out the powers that can be performed by your attorney.

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An Attorney Isn’t Always a Lawyer

Did you know that ‘Attorney’ doesn’t always mean ‘lawyer’?

In legal terms, an Attorney is someone appointed to make decisions on your behalf through a Power of Attorney, but they are not necessarily a qualified lawyer.

Understanding this distinction is important when planning your estate and appointing trusted decision-makers.

In this video, we clarify what an Attorney really is and why choosing the right person matters.

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Enduring Guardiaship FAQs

What is an Enduring Guardianship?

An enduring guardianship is a legal document that allows someone else, known as your guardian, to make health and lifestyle decisions for you in the event that you lose capacity to make health and medical decisions for yourself through old age, accident or illness. For example, an unexpected stroke, being in a coma or dementia.

Should I make an Enduring Guardianship?

Enduring Guardianships are an excellent estate planning tool that sets out your wishes in relation to your health and lifestyle. Your loved ones will benefit immensely from seeing your wishes documented in black and white, particularly if they are forced to make difficult end of life decisions for you. Your loved ones will have peace of mind knowing that they are carrying out your wishes, in accordance with your own directions and they are honouring your values.

Do I need an Enduring Guardianship if I have a spouse or next of kin?

Yes, absolutely. What if your spouse is unable or unwilling to make decisions for you due to death or their own incapacity? Although you can nominate your spouse as your first choice, it is imperative to nominate a trusted back-up.

When does an Enduring Guardianship start?

An enduring guardianship will only ever come into operation if you lose capacity. No one can legally make health and lifestyle decisions for you while you are capable of making those decisions yourself.

Can I cancel my Enduring Guardianship?

You can cancel your enduring guardianship at any time so long as you have capacity. This is done by completing a revocation form, signing it in the presence of a lawyer and serving a copy of the form on your guardian.

What happens if I don’t have an Enduring Guardianship?

Put simply, you have loose ends. If you lose capacity and you don’t have an enduring guardianship in place, the law states that medical and dental practitioners must obtain consent from a “person responsible” before commencing treatment on a patient that is incapable of giving consent. In order of priority, a ‘person responsible’ is either:

your enduring guardian, if you have appointed one;

your most recent spouse or de facto;

an unpaid carer currently providing support to you ;or

a relative or friend who has a close personal relationship with you.

What decisions can my Enduring Guardian make?

The law sets out the functions that your guardian can legally perform including:

deciding where you live, whether that’s at home with nursing care, relocating to live with the guardian or some other family member, or deciding that you need to be moved into an aged care facility;

deciding what health care you receive, for example consenting to certain medications or prescriptions being given or changed;

What Is an Enduring Guardian? | Legal Role Explained

Who will make important health and lifestyle decisions for you if you can’t?

An Enduring Guardian is someone you trust to step in and make personal and medical decisions on your behalf if you lose the ability to do so. This role is crucial for protecting your wishes and your wellbeing.

In this video, we explain why appointing an Enduring Guardian is one of the most important steps in your estate plan and how it safeguards your future.

Rayners Lawyers supports families with expert estate planning advice.

Testamentary Trust FAQs

Is a Testamentary Trust right for me?

Obviously it’s really important to obtain specific tailored legal advice about your own unique individual circumstances. After receiving advice, if you’re still in doubt, use a testamentary trust. We can prepare testamentary trusts that have opt out clauses, so if at the date of death, you’ve spent it all in your retirement and there’s nothing left to invest, your loved ones won’t be forced to take the trust if it’s not appropriate. With that in mind, I always err on the side of caution because the testamentary trusts give your loved ones options, the standard Wills don’t.

The testamentary trusts can by bypassed if it’s not needed but if you die without one and your loved ones needed it, because they just happen to be going through a relationship breakdown, or they’re being pursued by the trustee in bankruptcy, you cannot get the same outcome. They miss out and your assets will be exposed. So if you’re on the fence, use the testamentary trust.

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Do Testamentary Trusts have compliance costs?

There are no compliance costs or responsibilities unless someone passes away. Where the trust is being used for investment purposes, the common compliance costs and responsibilities simply involve applying for a tax file number for the trust, opening a bank account for the trust and lodging an annual tax return for the trust. Your solicitor and your accountant will assist with all of this, and their work will usually be tax deductable.

And remember, where you have investments where you’re earning an income in the trust and you’re receiving the huge asset protection benefits plus the $22,500 tax-free for minors kickbacks every year, any ongoing compliance cost will be marginal. The advantages of having the trust will far outweigh the compliance.

Are Testamentary Trusts a tax avoidance strategy?

Absolutely not. At this point in time, the government doesn’t recognise death as a tax avoidance strategy. The government basically gives everybody a tax break who uses a testamentary trust because they recognise that to have the trust come into existence, somebody had to die.

Should I create a Testamentary Trust if the inheritance will be used to pay down a home loan?

Absolutely. If you expect that your loved one intends to use their inheritance to pay down their mortgage, you should still consider a testamentary trust Will. We can preserve the asset protection benefits of the trust if a simple loan agreement is prepared between the trust as lender and the beneficiary as borrower.

Who should control my Testamentary Trust?

The case study explained below of Luke and Sarah shows how important it is to carefully choose who controls a testamentary trust.

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Who should I leave my inheritance to?

What does a Trustee actually do?

Ever wondered who has the most power in a trust? That’s usually the quiet and passive appointor.

But what does that actually mean for your estate plan?

In this video, we break down the crucial responsibilities of an appointor and why this role matters more than you might think.

What does an Appointor actually do?

Ever wondered who has the most power in a trust? That’s usually the quiet and passive appointor.

But what does that actually mean for your estate plan?

In this video, we break down the crucial responsibilities of an appointor and why this role matters more than you might think.

Special Disability Trusts

What is a Special Disability Trust?

A Special Disability Trust is a legal arrangement that allows you to provide for a loved one with a severe disability without affecting their eligibility for government entitlements.

In this video, we explain how these trusts work, who they benefit, and why they are a critical part of estate planning.

Is setting up a Special Disability Trust complicated?

Many people assume that establishing a Special Disability Trust will be difficult or time-consuming. The truth is, with the right legal and financial guidance, the process can be straightforward and hassle-free.

In this video, we explain the steps involved in setting up a Special Disability Trust and how Rayners Lawyers can simplify the process for you.

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