We help individuals, families, and executors with all aspects of estate planning, from preparing Wills, powers of attorney and advanced health directives, to assisting executors and grieving family members administer the estate of a loved one.
Preparing an effective and valid Will
Your Will is your voice after you die and having one will save your family stress, uncertainty, and unnecessary costs. A valid Will provides details of who should receive your assets when you die (your beneficiaries) and who will have the responsibility of administering your estate (your executor). Your Will can also appoint guardians for your children, if required.
A Will should consider your personal, financial, and family circumstances to ensure that it provides an optimum outcome. A well written Will helps to ensure that:
- your executor understands how your estate should be managed
- you are providing for the right people when you die
- disagreements amongst your beneficiaries are avoided or minimised
- the potential for a claim against your estate is minimised
- assets and vulnerable beneficiaries are protected
- your wealth is distributed in the most tax-effective manner achievable
Reviewing your Will
As your circumstances change, your Will should be reviewed and updated, if necessary, to ensure that it continues to reflect your testamentary wishes. The following life events may trigger the need to review and update your Will:
- marriage or divorce
- commencing a de facto relationship
- having a child
- the death of a named executor or beneficiary
- buying or selling a property or business
- receiving an unexpected windfall or inheritance
A word about DIY Will Kits
While DIY Will Kits are readily available, there are two main risks associated with them.
First, there is a high chance that your Will may be signed and/or witnessed incorrectly. Although Will Kits usually come with signing instructions, we have seen first-hand how easily these instructions can be misconstrued. A Will signed incorrectly can lead to a potential claim regarding its validity after you die.
Second, there is never a one-size-fits-all approach to preparing a Will. For some, the limited options provided by a DIY Will Kit may be okay but for many this will not be the case. It is important to discuss your individual and family circumstances with a lawyer to avoid some of the common pitfalls associated with DYI Wills. A lawyer will explain ways to protect your assets, maximise your loved-ones’ inheritance, and minimise the potential for disputes and family provision claims after you die.
Powers of Attorney
A power of attorney is a legal document authorising another person to make personal and/or financial decisions on your behalf. Personal decisions relate to your care, welfare and health (for example, deciding where or with whom you live or consenting to medical treatment). Financial decisions relate to managing your finances (for example, paying your bills, selling or renting your home, using your income to pay for your needs or investing your money).
There are two types:
- a general power of attorney which ceases if you lose capacity
- an enduring power of attorney which will continue if you lose capacity
We can help you determine the type of power of attorney that is right for your circumstances, any specific restrictions you wish to include, and prepare the documents for you. A power of attorney provides assurance that somebody you trust is authorised to help manage your affairs when you are unable to.
Advance Health Directives
An advance health directive (sometimes called a living will) is a formal way to give instructions about your future health care. It comes into effect only if your cognitive health deteriorates and you become unable to make your own decisions. An advance health directive outlines what medical treatment or health care you want if you can no longer make decisions for yourself. It can be general or very specific.
Information for executors
An executor is the person with the responsibility to manage somebody’s estate according to the terms outlined in their Will.
In addition to managing the practical matters after a person dies, an executor has a range of legal duties to fulfil. The executor may need to apply for a grant of probate, locate and determine the value of assets, deal with third parties such as banks, fund managers and real estate agents, liaise with debtors and creditors, transfer and/or sell property and other assets, and distribute the estate amongst beneficiaries. Estate tax returns may be required, and an executor may need to deal with disputes and family provision claims.
Being an executor can be overwhelming, particularly if you are grieving. Estates vary in complexity and executor’s duties can be far-reaching, so it is a good idea to be guided by an estate lawyer. The cost of legal advice is usually covered by the estate.
Family Provision Claims
Making a claim
If you have been left out of a Will, or you have not received what you believe you are entitled to from a deceased estate, you may be eligible to make a claim to obtain a share or greater share. Certain individuals may be ‘eligible’ depending on their relationship with the deceased. The criteria vary between different jurisdictions in Australia and a lawyer can advise you in this regard. Strict time limits apply so it is important to get advice quickly.
Most claims are settled through negotiation or mediation. If the claim is not resolved, a court may decide whether a claimant is successful and, if so, what adjustment should be made in that person’s favour. The court will consider a number of factors including the value of the estate, the claimant’s relationship with the deceased and to what extent the claimant may have already been provided for under the deceased’s Will.
Defending a claim
If you are the executor of an estate, it is your duty to uphold the Will against any claims which are made against the estate. In doing so however, it may be wise to consider settling a claim which is likely to succeed in court, rather than depleting estate funds through excessive legal fees and court costs.
Generally, an executor should refrain from distributing assets from the estate if a claim is made. If such a claim is successful, and there are insufficient assets remaining in the estate, the executor may be personally liable.