Wills & Estates
It is impossible to see what exactly the future holds, so how do you plan for the unknown? The good news is that legal documents can provide some level of certainty around some aspects of the future. There are a number of ways we can help you plan for yourself (with a power of attorney and guardianship) and for those that are dear to you (through your will) to ensure your estate is managed as you wish.
Proper estate planning involves many different considerations.
- Carefully reviewing all estate assets
- Carefully reviewing all non-estate assets such as superannuation, life insurance and jointly held property
- Considering the circumstances of your intended beneficiaries, such as infant beneficiaries, beneficiaries with disabilities or special needs, and other vulnerable beneficiaries such as alcoholics or gamblers
- Considering the impact of any family-owned business, company or family trust
Our lawyers can work in collaboration with your accountant or financial advisor to ensure your estate plan achieves your wishes in the most tax-effective manner.
If you have been named as the executor of a will, then there will come a time when you administer an estate. That means distributing the assets as set out in the will. The administration of the estate can be a long and complicated process. While there are a number of steps in the process, we can assist you with all of them, guiding you in the execution of your duties and taking the burden from you in these difficult times.
Family and friends sometimes disagree over assets of a loved one who has passed away. This can happen when a will is available but more likely when a DIY will was completed or no will exists. We can manage an estate dispute or help you challenge a will.
Creating a will
Every adult should have a will. We can assist you in drafting and finalising a legally effective will to ensure that your estate is left to the people you care about and for whom you wish to provide.
It is important to word your will correctly because a poorly worded will could mean your estate may not be distributed exactly according to your wishes. This can put unnecessary pressure on the family and may lead to unpleasantness, serious dispute or even litigation. If your will is not valid, your estate will be distributed according to a formula determined by the government. This may result in family members who have little or no relationship with you receiving a share of your estate.
A will can be a simple or complex document, incorporating one or more different types of testamentary trusts to enable inheritances to pass through a trust structure. A trust is an ownership structure whereby the assets of the trust are owned by the trustee but held for the benefit of individuals (the beneficiaries). There are different types of testamentary trusts, such as discretionary testamentary trusts, protectionary testamentary trusts and charitable testamentary trusts. We can assist you in working out what type of trust structure is appropriate for your circumstances so that what you intend in your will eventuates.
Find out more about testamentary trusts.
We can advise you in relation to the most appropriate type of will to suit you and your circumstances.
Changing a will
You should review your will every two to three years, whenever a major event occurs in your family, or whenever there are significant changes in your assets or the taxation law. You may consider changing your will if, for example, you have changed your name, an executor has died, a beneficiary has died, you have sold property that was designated under the will to a specific person, you marry or divorce, you enter into a new relationship, you have matrimonial difficulties or you have additional children.
You are free to change your will or revoke it at any time without informing your partner. However, this does not apply if you and your partner have made mutual wills (i.e., you have agreed not to change your wills without the agreement of the other partner). Mutual wills are occasionally used to protect children of earlier relationships where couples have entered into second or subsequent relationships.
Powers of attorney & guardianship
General powers of attorney
General powers of attorney are normally used for a specific purpose and are only valid while you have legal capacity. For example, you may appoint someone else to be able to act on your behalf in relation to the purchase of a property because you know that you will be overseas or otherwise unavailable to complete the purchase yourself.
Enduring powers of attorney
An enduring power of attorney (EPA) gives you the power to specify a person (known as an attorney) who will manage your affairs and make decisions on your behalf when mental or physical incapacity may occur as a result of conditions such as brain damage, dementia, unconsciousness, Alzheimer’s or serious injury. This is necessary because, without such a document, your family members do not automatically have the right to make financial, property, personal or medical decisions for you while you are mentally incapacitated.
In particular, an EPA gives you the power to specify what decisions your attorney can make on your behalf. For example, you are able to give your attorney the power to make financial, property, personal and medical decisions for you while you are mentally or otherwise incapacitated. In addition, you are able to limit the types of decisions your attorney can make on your behalf.
Find out more about a power of attorney.
A guardianship can be put in place to authorise a person to make decisions on behalf of an adult whose decision-making ability is impaired. A guardian can then make decisions about where you live and your medical care if you lose the capacity to make your own decisions. It’s important to select someone you trust as soon as any signs appear that you may need these decisions made for you. A manager is typically appointed to look after financial affairs.
Probate & estate administration
The basic duties of an executor are to ensure that the wishes of the deceased are carried out by listing and managing the assets and liabilities of the deceased and then distributing the estate to the beneficiaries as set out in the will. The administration of the estate can be a long and complicated process. We can guide you in the execution of your duties including obtaining full information about the estate assets and liabilities and obtaining grants of probate or letters of administration.
A grant of probate is a document issued by the Supreme Court, that establishes that a person’s will is in order and that the executor named in that will has the power to look after the deceased person’s affairs. Find out more about probate. A grant of letters of administration is issued by the Supreme Court in circumstances where either the deceased died intestate (they did not leave a will) or where there was a will but the deceased either did not appoint an executor in the will or the deceased did appoint an executor but the executor has either died or renounced probate. Find out more about letters of administration.
Some estates will require the grant of probate or grant of letters of administration to be resealed in another jurisdiction. We can assist you in applications for reseal of grants.
Once a grant of probate or letters of administration have been obtained, or in estates where a grant is not required, we can assist executors and administrators in administering the estate. Administering an estate includes activities such as closing the deceased’s bank accounts, collecting and protecting estate assets, selling or transferring shares and/or properties owned by the deceased, attending to any debts or liabilities, finalising the deceased’s taxation affairs and making distributions to the beneficiaries in accordance with the will or in accordance with the intestacy laws.
Disputes and litigation over estates are becoming increasingly common. It is often the case that family members are left with unanswered questions and concerns after the death of a loved one. Our team of estate dispute lawyers are experienced in defending contested wills and supporting the executor in their duty to defend the will and fulfil the wishes of the deceased.
One of the major reasons for estate disputes is when there is no valid will. Ensuring that your loved one has a valid will is not enough to prevent a challenge but clear and well thought-out intentions do assist in the process.
We have shared some of our expertise about dispute resolution here.
Challenging a will
There are many factors worth considering when you are reviewing the will of a deceased family member. These include whether it makes adequate provision for family members and whether the deceased had testamentary capacity when the will was entered into.
Similarly, grounds for ‘setting-aside’ a will may be established if it can be shown that the deceased person was under undue pressure to make their will in a particular fashion. This is a complex area of the law, and each case needs to be considered individually.
There are a number of formal requirements to ensure that a will is valid. The law requires a person making a will to have testamentary capacity. This means that a person must understand the nature and effect of making a will and have an understanding of what their assets are and who might have a claim on their estate. If it is proved that a person did not have testamentary capacity at the time of making their will, for example by medical evidence, then the will is not valid. We can assist in the provision of advice in cases where testamentary capacity is an issue.
Family provision claims
Certain people are eligible to challenge a will by making a family provision claim, depending upon their relationship with the deceased person. This is a complex area of the law that varies between each state and territory.
In the ACT, if you wish to challenge a will because you were not made a beneficiary or because you consider you were not adequately provided for in the will, you may do so under the provisions of the Family Provision Act 1969. People who may be eligible to challenge a will include a spouse, domestic partner (including partners in a de facto or same-sex relationship), or a child of the deceased. Parents, stepchildren and grandchildren of a deceased person may also be entitled to make an application, provided they meet certain criteria.
International issues in estate planning are becoming more prevalent. It is not just high net-worth individuals who have assets or interests outside of Australia. If you have assets both in Australia and abroad, we are able to assist you with your estate planning needs.
In some circumstances, it may be appropriate for people to have two wills, one to deal specifically with Australian assets and another to deal with interests abroad. We can work in conjunction with lawyers in other countries to ensure international estate planning needs are met.
Having two wills in two different jurisdictions is not common, but is possible and appropriate in certain circumstances. Wherever two wills are being prepared, it is important for you to discuss this with us as there are potential traps that need to be avoided. For example, great care must be taken to ensure the wills in the different jurisdictions do not inadvertently revoke each other.
Moving into a retirement village
If you decide to move into a retirement village, the contracts can be overwhelming and confusing. Retirement village operators use a variety of different occupancy options and it is important to be aware of the legal consequences involved in retirement village contracts.
We can explain the impact of the arrangements that you are considering on you, your assets and your finances. Importantly, few retirement village contracts create a capital investment for you and each will affect your entitlements differently.
We offer advice on reviewing licence agreements, loan agreements, sub-leases and other contracts such as car park licences and can assist you with the settlement process. We explain departure fees and how they are calculated and at the conclusion of residency, we can review the departure fee calculations provided by the retirement village to provide peace of mind for all parties. You can find out more about the different retirement village contracts in the ACT and learn the top tips when evaluating retirement villages.
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