Wills & Estates

Many people do not have a valid Will or a plan to cover unforeseen events like becoming sick or incapacitated. Estate planning involves protecting your hard-earned assets so they maintain value and are distributed to your intended beneficiaries when you die. It also involves taking steps to ensure your affairs can be dealt with by somebody you trust if you are unable to manage things yourself.

We can assist with implementing an effective estate plan that takes into account your family, financial and personal circumstances.

Do I really need a Will?

A valid Will ensures that your testamentary wishes are known and are likely to be followed when you die. If you are over 18 years, and no matter how modest your assets, you should consider preparing a Will.

A Will appoints an executor or executors to manage your estate when you die and provides instructions on how your assets should be divided between your beneficiaries. Your Will can also appoint guardians for your minor children and provide directions regarding funeral arrangements.

Wills can be simple or complex, depending on your circumstances.

A testamentary trust is a type of Will that creates a trust or trusts after you die. Trusts can assist with safeguarding assets from potential third-party creditors so only those you intend to benefit from your estate will receive an inheritance. Trusts can be set up for minor children and can also help protect beneficiaries who are at-risk or vulnerable, such as those with gambling addictions or who live with a mental disability.

What happens if I die without a Will?

It is important to prepare a Will and your other estate planning documents while you have the legal capacity to do so.

Dying without a Will (referred to as dying intestate) can leave your family vulnerable and place extra pressure on them when they are already facing a difficult time. If you die intestate, a statutory formula determines how your assets will be distributed. The order of distribution is designed to reflect general ‘expectations’ as to who should benefit from a person’s estate. That said, this pre-determined formula may not necessarily result in the real wishes of the deceased person.

If you die without a Will, your family will likely have the added task of having to apply to the court for Letters of Administration. In such cases, an interested person (the next of kin) will need to apply to be appointed an administrator. When granted, that person can deal with the estate in the same manner as an executor would.

Who should I choose as my executor?

Your executor is your legal representative when you die and must ensure that your estate is administered in accordance with the provisions of your Will. An executor is usually guided by a lawyer who can assist with the legal process of applying for probate and administering the estate. A lawyer can also provide advice to minimise the executor’s exposure to personal liability, particularly if an estate is complex.

An executor’s responsibilities might include, but are not limited to, arranging the funeral, protecting assets, collecting debts, and paying bills, claiming under insurance policies, applying for probate, and selling and transferring assets.

Choosing an executor is an important part of estate planning. Most people will appoint their spouse or partner and / or a child or children as executors. This is quite common however may not always be appropriate for your circumstances.

You can appoint more than one executor or an alternate executor in case your first choice is unwilling or unable to carry out the role.

When appointing executors, you might ask yourself if that person or persons are:

• willing to accept the role of executor;
• physically and mentally well enough to manage the role and / or likely to outlive you;
• suitable in terms of having enough time, experience and the confidence to deal with your affairs as you have instructed;
• capable of acting impartially, particularly if a dispute arises.

If you do not have a suitable choice as an executor, you may consider appointing a solicitor or other professional as your executor.

Powers of Attorney and Enduring Guardians

A power of attorney is a legal document that appoints somebody you trust (your attorney) to look after certain financial and / or legal matters on your behalf if you are travelling, unwell, or just need some extra help as you age. A power of attorney can specify the things your attorney is authorised to do, and under what circumstances the authority will operate. For example, you could appoint somebody to help with a one-off transaction for convenience, like while you are travelling. Alternatively, you can make an enduring power of attorney which will come into effect only if and when you lack capacity.

An appointment of enduring guardian appoints a person to make certain lifestyle, health and medical decisions on your behalf if you lack capacity to make those decisions yourself.

A lawyer can discuss your specific circumstances and recommend and explain the most appropriate documents for your situation.

What is a grant of Probate?

Probate is a grant made by a court that proves the Will of a deceased person and authorises an executor to administer the estate according to the Will. The need to obtain probate will generally depend on the size and complexity of the estate, the requirements of the institution where assets are held, and whether there are any potential issues that may become contentious when administering the estate. If you are an executor of an estate, we can advise whether probate will be required, or recommended, in the circumstances.

Have you been left out of a Will?

When somebody dies, you may find yourself unexpectedly left out of that person’s Will or that the provisions of your inheritance seem unfair. Alternatively, you may be the executor of a Will facing a claim by a disgruntled beneficiary or potential beneficiary.

A family provision claim may be made by an eligible person seeking a share or greater share from an estate if it can be shown that the deceased failed to make adequate provision for the applicant’s proper maintenance, education and advancement in life.

A family provision claim must be made within the prescribed timeframe and may only be made by an eligible person. Generally, an eligible person includes a spouse, former spouse, de facto partner or child of the deceased or, in specified circumstances, certain individuals who were dependent on the deceased. We can advise you regarding the eligibility criteria for your specific circumstances, the relevant timeframes, and the likely outcome of a family provision claim.

Many family provision claims are settled by negotiation between the parties and their respective lawyers rather than litigating the matter in court. This will usually be more practical for all parties as it will help to minimise excessive legal fees, delays and court costs.

Dealing with a deceased estate can be distressing for executors who need to ensure that their duties are properly carried out, usually at a time when they are grieving and vulnerable. We have expertise in probate and estate administration and can assist you in this area. We can also help you plan your estate so you can rest assured that your hard-earned assets will be distributed according to your wishes after you die.

If you need any assistance, contact one of our lawyers at [email protected] or call 1300 658 788 for a no-obligation discussion and for expert legal advice.