Most people know that lawyers “write wills”, but wills and estates law extends well beyond preparing documents. It deals with the legal and financial consequences of death-protecting family wealth, resolving disputes, and ensuring that a person’s final wishes are respected.
A wills and estates lawyer (also known as a probate or succession lawyer) helps clients plan for what happens after death and assists families in managing the process once it occurs. Their work involves a careful balance of legal knowledge, practical problem-solving and empathy.
1. Planning Ahead: Wills and Estate Structuring
Drafting Wills
A lawyer’s most recognised role in this field is preparing a will-a document setting out how a person’s assets should be distributed after death. A properly drafted will provides certainty, avoids confusion, and reduces the risk of disputes.
A wills and estates lawyer will:
identify the client’s assets and liabilities;
advise who should act as executor;
provide guidance on guardianship of minor children;
consider jointly owned property, superannuation, and taxation; and
ensure the document meets the requirements of the Succession Act 2006 (NSW).
Although “DIY” and online will kits are available, they often fail to address complex family or asset arrangements. Seemingly small errors like unclear wording or missing signatures - can render a will invalid, lead to costly litigation, or result in significant tax consequences.
Testamentary Discretionary Trusts
For clients with significant assets, children, or blended families, a simple will may not be enough. Specialist estate lawyers often incorporate testamentary discretionary trusts, which are trusts that come into effect after the will-maker’s death.
These structures can:
protect inheritances from creditors or relationship breakdowns;
offer tax flexibility by distributing income among family members; and
ensure long-term management of assets for children or vulnerable beneficiaries.
Because they involve elements of trust and tax law, testamentary trusts must be carefully drafted and tailored to the family’s circumstances.
Business Succession Planning
Where a client owns a business, estate planning must also consider business succession. A lawyer can:
review company constitutions and partnership agreements;
ensure control of companies or trusts passes smoothly to successors;
coordinate with accountants and financial advisers on buy-sell arrangements; and
integrate insurance and superannuation strategies into the estate plan.
Sound business succession planning ensures continuity for employees and family members, and helps avoid disruption or loss of value on an owner’s death.
2. Managing the Estate After Death
Probate
When someone dies leaving a valid will, the executor usually needs to obtain probate - a Supreme Court order confirming that the will is valid and the executor has authority to act.
A probate lawyer assists by:
advertising the intention to apply for probate;
preparing affidavits, inventories and other Court documents;
responding to any requisitions from the Court; and
collecting, managing and distributing the estate’s assets.
While straightforward estates may be able to proceed smoothly, complications often arise when there are multiple properties, overseas assets, or questions about the deceased’s capacity at the time the will was made.
Letters of Administration
If there is no valid will, or the named executor cannot act, a person’s estate is distributed under the intestacy provisions of the Succession Act 2006 (NSW).
A lawyer assists the appropriate next of kin in applying for letters of administration and then guides them in gathering the estate’s assets, paying debts, and distributing funds in accordance with the law.
3. Resolving Estate Disputes
Even with clear documents, disagreements can arise about whether a will is valid or whether someone has been left out unfairly.
Family Provision Claims
Certain people such as a spouse, de facto partner, child, or someone financially dependent on the deceased can bring a family provision claim under Part 3 of the Succession Act 2006 (NSW) if they believe they have not been adequately provided for.
A wills and estates lawyer can:
advise on eligibility and prospects of success;
represent either the claimant or the executor in negotiations; and
seek resolution through mediation or, if necessary, the Supreme Court.
These cases often involve sensitive family dynamics. Skilled estate lawyers aim to achieve a fair outcome while minimising stress and cost.
Probate Litigation
Disputes sometimes arise over whether a will was properly executed or whether the deceased had capacity. Probate litigation requires careful evidence, medical reports and expert understanding of the law. Experienced lawyers act for executors or beneficiaries to ensure that the deceased’s true intentions are upheld.
4. Ongoing Estate Administration
After probate or administration is granted, the estate must be finalised. Lawyers assist executors and administrators by:
liaising with banks, superannuation funds and the Australian Taxation Office;
arranging property transfers and asset sales;
preparing deeds of family arrangement where beneficiaries agree to vary distributions; and
ensuring tax obligations and reporting are completed correctly.
In estates involving ongoing trusts, such as testamentary trusts, lawyers may need to continue to advise on trustee duties, income distribution and compliance with the Trustee Act 1925 (NSW).
5. Supporting Families Through a Difficult Time
Perhaps the most understated part of a wills and estates lawyer’s role is providing clear guidance during times of grief. Clients often approach lawyers at emotionally difficult moments-after a death, during a family conflict, or while facing serious illness. A good lawyer balances empathy with practical direction, ensuring clients understand each step and feel supported throughout the process.
Common responsibilities include:
explaining executor duties and legal timelines;
advising beneficiaries of their rights; and
ensuring all parties act in accordance with their legal and ethical obligations.
Do You Need a Lawyer When Someone Dies?
Not every estate requires a lawyer, however it is often easier and subjects you to less risk if you do get a lawyer involved, even with simple estates. Professional advice is strongly recommended where:
there is no valid will;
the estate includes real estate, shares, or trusts;
there are blended families or estranged relatives; or
someone may contest the will.
Getting advice early can save significant time, cost, and stress, and can prevent mistakes that might otherwise delay or invalidate the process.
Final Thoughts
A wills and estates lawyer’s work spans both life and death: from helping clients plan their affairs and structure their assets, to guiding families through probate, administration, and estate disputes. Their role is to provide clarity, security, and peace of mind at times when it matters most.
Talk to Our Wills & Estates Team
Whether you need help preparing a will, applying for probate, or resolving an estate dispute, Thornton + King’s experienced wills and estates lawyers can guide you through the process with care and clarity. We’ll explain your options in plain language and help you take the next step with confidence. Give us a call or submit an enquiry now.
