Wills & Estates
Why should I have a Will?
Making a Will provides certainty for your family when you die and gives you the final say in how your property is distributed. Having a Will can minimise or avoid potential disputes and makes the process of administering your estate less complex and less costly for your family.
Dying without a Will is called dying ‘intestate’. In such cases, your assets would be distributed according to a statutory formula set out in the relevant state and territory laws. This may not reflect your real wishes.
A Will appoints one or more executors to administer your estate and finalise your affairs. It directs how your estate should be distributed and can help protect assets and vulnerable beneficiaries, if necessary, through testamentary trusts.
Involving a lawyer with your estate planning can help make the most of your hard-earned assets. We will assess your individual circumstances to provide an optimum outcome for you and your family.
What is a testamentary trust?
A testamentary trust is a trust created in a Will that comes into effect when the will-maker dies. The appointed trustee can make decisions about who, from the nominated beneficiaries, will receive gifts from the capital or income of the trust in accordance with the rules outlined. This can provide a level of protection for assets or beneficiaries. For instance, if a person wants to leave gifts to young children or vulnerable individuals, a testamentary trust can ensure that funds are used to benefit those identified due to the duties of a trustee. Testamentary trusts can also help protect assets from third parties if a beneficiary is at risk of bankruptcy or being sued.
How often should I review my Will?
You should consider reviewing your Will when major changes in your personal or financial circumstances occur, for example, when:
- you marry, separate, divorce, or start a new relationship
- you have a child or adopt a child
- a beneficiary or executor named in your Will dies
- there is a major change to your health
- you buy or sell property, start a business, or acquire company interests
- you receive an inheritance or large sum
- there are changes to your superannuation, personal insurance or tax levels
- you become involved in a trust
Powers of Attorney
A power of attorney is a legal document appointing somebody (your attorney) to manage certain legal and financial matters on your behalf for convenience, or if you are unable to do so yourself. The scope of authority is set out in the document itself and may be limited to a specific transaction or apply to a range of tasks. The power of attorney can operate for a limited period, for example, while you are travelling overseas.
If you want to ensure that your financial and personal affairs are managed by somebody you trust if you lose mental capacity, you may wish to consider making an enduring power of attorney. As the name suggests, and unlike a general power of attorney, an enduring power of attorney continues (or endures) if/when a person loses capacity.
Although an attorney is required by law to act in your best interests, it is essential to choose somebody you trust implicitly and who will be capable of carrying out the duties specified in your power of attorney. We can help you decide the best option for your circumstances.
Administering an estate – executors and administrators
After a person dies, someone needs to look after their assets and finalise their financial and other affairs. This is generally referred to as estate administration. An executor is the person appointed under a Will to carry out this role. If a valid Will was not left by the deceased, the next of kin will usually administer the estate and may need to apply to the court for letters of administration.
Executors and administrators have many legal responsibilities and may need to deal with unfamiliar matters. For example, they may need to consider the tax implications on the sale or transfer of assets, the order of payment of debts, or face a family provision claim or estate dispute. We can help you through the legal process, providing advice and guidance so you can carry out your legal duties and ensure the estate is administered as smoothly and effectively as possible.
Probate and letters of administration
Probate is a grant made by the Supreme Court that ‘proves’ the Will of a deceased person and authorises the executor to deal with the assets. The requirement to obtain probate generally depends on the size of the estate, the type of assets, and how they are held. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.
A grant of letters of administration may be required when a person dies intestate. On application, the court will appoint an administrator, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
Succession planning
If you are involved in a business, it is important to have a succession plan. A succession plan can address issues such as what will happen in the event of an unexpected death, divorce, disagreement (if the business is a partnership or a family business) or incapacity. Ensuring that you have an appropriate succession plan can provide protection for you, your family, your employees, and the business itself. Our experienced lawyers can assist in providing tailored advice and solutions to ensure that the impact of unexpected events is minimised.
If you need assistance, contact [email protected] or call 02 9724 7188 for expert legal advice.