Wills & Estates
Our Wills & Estates team can help you plan for the future, even though none of us know what the future holds for us. We can help you with all aspects of estate planning, including creating, changing or challenging a will; establishing a power of attorney; organising guardianship; and what you need to know when you are ready to move into a retirement village.
It’s 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 a level of certainty around some aspects of the future. To ensure that your estate is managed as you wish, we can help you plan for yourself (with a power of attorney) and for those that are dear to you (through your will).
Proper estate planning involves many different considerations, such as:
- 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, including infants and other vulnerable beneficiaries
- considering the impact of any family-owned business, company or family trust.
We can work with your accountant or financial advisor to ensure your estate plan achieves your wishes in the most tax-effective manner.
Acting as executor of a will
If you’ve been named as the executor of a will, you’ll have to, at some time, administer an estate. That means distributing the assets as set out in the will. This can be a long and complicated process, but we can guide you through the required steps as you carry our your duties, easing the burden for you in these difficult times.
Family and friends sometimes disagree over assets of a loved one who has passed away. Although this can happen when a will is available, it’s more likely when a DIY will kit was used 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 and we can help you in drafting and finalising a legally effective will. This will ensure that your estate is left to the people you care about and for whom you wish to provide.
It’s important to word your will correctly. A poorly worded will could mean your estate might not be distributed 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 isn’t 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. It can incorporate 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:
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, when a major event occurs in your family, or when there are significant changes in your assets or the taxation law. You may consider changing your will if, for example:
- you’ve changed your name
- an executor or a beneficiary has died
- you’ve sold property that you had designated to a specific person under the will
- you marry or divorce, enter into a new relationship, have matrimonial difficulties or have additional children.
You are free to change your will or revoke it at any time without informing your partner. However, this doesn’t apply if you and your partner 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’ll 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 if you are mentally or physically incapacitated. This can occur as a result of conditions such as brain damage, dementia, unconsciousness, Alzheimer’s or serious injury. An EPA is needed as your family members don’t 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 can 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 can limit the types of decisions your attorney can make on your behalf or give guidance/directions about decisions that you would like made on your behalf if you lose capacity to make those decisions yourself (e.g. no life support clauses).
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. They do this 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 all necessary information about the estate assets and liabilities and obtaining grants of probate or letters of administration.
Grants of probate and 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 here.
A grant of letters of administration is issued by the Supreme Court in circumstances where either the deceased died intestate (they didn’t leave a will) or where there was a will but the deceased either didn’t 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 here.
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 resealing grants.
Once a grant of probate or letters of administration have been obtained, or in estates where a grant isn’t required, we can help executors and administrators to administer 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.
We can assist you in both ACT and NSW probate applications and ACT and NSW reseal applications.
Disputes and litigation over estates are becoming increasingly common. Sometimes family members have unanswered questions and concerns after the death of a loved one. Our team of estate dispute lawyers is experienced in defending contested wills and supporting the executor in their duty to defend the will and fulfil the wishes of the deceased. We can assist you in both ACT and NSW contested estate matters.
One of the major reasons for estate disputes is the lack of a 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
- what their assets are
- who might have a claim on their estate.
If it’s proved that a person didn’t have testamentary capacity when they made their will, then the will will be ruled invalid. We can provide 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. This will depend on their relationship with the deceased person. This is a complex area of the law that varies between each state and territory. We can help you in both ACT and NSW family provision claims.
In the ACT, if you wish to challenge a will because you weren’t made a beneficiary or because you consider you weren’t 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.
You can read more about family provision claims here.
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 can assist you with your estate planning needs.
In some circumstances, it may be appropriate to have two wills – one to deal with Australian assets and another for international interests. 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. If two wills are being prepared, it’s important to discuss this with us so that we can avoid potential traps. For example, it’s important to ensure the wills in the different jurisdictions don’t 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. Operators use a variety of occupancy options; it’s important to be aware of the legal consequences involved in retirement village contracts.
We can explain the effect of the arrangements that you’re considering will have 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.
- provide advice on reviewing licence agreements, loan agreements, subleases and other contracts, such as car park licences
- help you with the settlement process
- explain departure fees and how operators calculate them
- review the departure fee calculations provided by the retirement village at the conclusion of the residency.
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