The Three Estate Planning Documents You Need to Have

Good estate planning comes down to three legal documents. Most people only think about the Will, but there are two others that are just as important, and far fewer people have them.

This article covers all three, explains why each matters, and outlines what can go wrong if any are missing.

Key takeaways

• Every adult should have three main documents: a Will, an Enduring Power of Attorney, and a Medical Treatment Decision Maker appointment.
• Without a Will, the court decides who gets what, and it might not line up with what you'd want.
• Estate planning isn’t only for retirees or people with lots of assets. It’s for anyone who owns property, has a family, or wants to have a say in what happens to them.
• Farming families and property owners in regional Victoria & NSW often have more to think about than they realise, including land and water rights and business succession.
• Review your documents every few years, or whenever your life changes, to keep everything up to date.

What does "estate planning" actually mean?

It might sound complicated, but estate planning is really about having the right legal documents ready. These cover what happens to your assets when you die and who can make decisions if you can't.

A complete estate plan covers three areas:

• Your assets: property, savings, investments, personal belongings, and any business interests
• Financial and legal decisions: who manages things if you’re unable to do so
• Medical decisions: who speaks for you if you can’t speak for yourself

In Victoria & NSW, these three documents work together to cover everything. You need all three, not just one.

The three documents you need and what happens if you don’t have them

Your Will

A will is a legal document that records how you want your estate to be distributed after you die. It usually appoints an executor to administer your estate and can record your wishes about who should care for your minor children. If you die without a valid will, your estate is distributed according to intestacy legislation rather than your personal wishes. In Victoria, this is governed by the Administration and Probate Act 1958 (Vic). In NSW, the intestacy rules are principally contained in the Succession Act 2006 (NSW). The statutory scheme can produce unintended outcomes: for example, a separated spouse may still inherit, a de facto partner may need to prove their status, and relatives from whom you were estranged may benefit. 

For a Will to be valid in Victoria or New South Wales, it needs to be:

• In writing
• Signed by you in front of two witnesses
• Signed by those witnesses while you're present

Online Will kits are a common reason for invalid or disputed Wills. Fixing a poorly drafted Will in court usually costs much more than getting it right the first time.

Enduring Power of Attorney (EPOA) 

An Enduring Power of Attorney, allows you to appoint someone you trust to make financial and personal decisions for you if you lose decision-making capacity.

Loss of capacity can happen through accident, illness, stroke or dementia, sometimes without warning.

Without an Enduring Power of Attorney, your family may need to apply to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of an administrator to manage your financial affairs. In NSW, the process is via NSW Civil and Administrative Tribunal (NCAT) or, in some cases, via the NSW Supreme Court, for a financial management order. The process can take time, cost money and add stress at an already difficult time.

An Enduring Power of Attorney can be structured so that financial powers begin immediately or only in specified circumstances. Personal decision-making powers generally operate when you are unable to make those decisions yourself.

Medical Treatment Decision Maker (for Victoria) or Appointment of Enduring Guardian (for NSW)

Separate from financial decisions, a Medical Treatment Decision Maker is the person authorised to make medical decisions on your behalf when you can't. This is governed in Victoria by the Medical Treatment Planning and Decisions Act 2016 and in NSW by the Guardianship Act 1987.

You can also prepare an Advance Care Directive at the same time. This document records your values and treatment preferences, so your chosen person knows what you would want.

If you don’t have one, medical staff follow a legal order to decide who can consent to your treatment. That person might not be who you would have picked.

Who really needs to think about this?

Honestly, everyone should think about this. But there are some situations where it’s especially important:

• Young families: Your Will is the only legal document where you can nominate a guardian for your children. Without one, a court will decide.
• Property owners: Owning a home in Echuca/Moama, Cohuna, Kerang, Boort or Swan Hill and surroounds or farmland nearby doesn’t mean it will automatically go to your partner. How you hold property matters, and a Will makes your wishes clear.
• Farming families: Rural estates often include land, water rights, livestock, and equipment, which can be hard to transfer. Without a plan, the farm’s future can be left uncertain at a difficult time.
• De facto couples: A long-term partner isn’t automatically protected under Victorian law if there’s no Will.
• Anyone over 18: You can lose capacity at any age. An EPOA and a Medical Treatment Decision Maker are not just for older people.

When should you review your documents?

The first step is getting your documents sorted. The next is making sure they stay up to date.

Review your estate plan when:

• You marry, separate, or divorce (in Victoria, divorce revokes gifts to a former spouse in your Will)
• You have children or grandchildren
• You buy or sell significant assets
• A beneficiary or executor named in your Will passes away
• Your relationship with someone named in your documents changes significantly
• Five or more years have passed since your last review

Your documents should reflect where you are now, not where you were when you first signed them.