Wills & Estates

Estate Planning

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.

Guardianship

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.

Estate disputes

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.

Testamentary capacity

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

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.

Meet your Wills and Estate team

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Managing a deceased estate with 3 executors was so much easier than I expected. Thanks for all your assistance with our estate matters, Tanya Herbertson.

Your efforts were totally professional and I would unreservedly recommend SHG to others.

Warwick G (Wills and Estate)

7 May 2018

We recently updated our wills and end of life wishes with Snedden Hall & Gallop.

We would thoroughly recommend Gillian Hunter and all the staff whose expertise, efficiency and understanding made the whole process very easy to manage.

Our thanks to all.

T and S Shumack (Wills and Estate)

13 April 2018

‘Stranded’ in a nursing home at the time of my wife’s death, I needed assistance with regard to tidying up her affairs and obtaining probate on her will.

I was more than satisfied with the help provided by SHG in these matters which, among other things, included visits to me when face to face dealing was required.

I would not hesitate to use this firm again should the need arise.

G Cleverly (Wills and Estate 1)

30 May 2017

Gillian Hunter assisted us when our brother passed away without a will.

She made a complicated situation a lot easier for us to understand and kept us informed every step of the way.

Brad (Wills and Estate)

19 February 2018

Just a short note to thank you for your advice, Tanya Herbertson, and the work you did to finalise the settlement for the estate. Dealing with a contested estate was not easy but certainly made better by having a dedicated professional taking care of the process.

Thank you again.

P and E H (Wills and Estate)

29 January 2018

Your company and I have had two years of having to deal with the executors of my mother’s estate.

I first saw Tanya Herbertson, then after that, to completion, I was with Gillian Hunter.

May I say I don’t think I would have got through it all if it hadn’t been for Gillian. I know it is her job but she made me feel as if I was her only client and I will be eternally grateful for her help and support through some very nasty times.

May I also say a big thank you to Lee (on the switch). She was always lovely and pleasant to me.

Once again thank you to all who helped me.

Marilyn L (Wills and Estate)

7 December 2017

In dealing with a deceased estate, Gillian Hunter provided me with highly professional support and advice, but more importantly was compassionate, considerate and patient.

Knowing that she was available and receptive to the many issues that arose during the process gave me great comfort.

I would highly recommend your firm as a result of my dealings with Ms Hunter!

Leonie W (Wills and Estate)

6 December 2017

Miss Gillian Hunter of Snedden Hall and Gallop provided a great service to a lady friend of mine with the will of her de facto partner and his estate.

My friend was totally satisfied with all the professional advice she received!

BC (Wills and Estates)

12 February 2018

Gillian Hunter of Snedden Hall & Gallop provided excellent service and advice regarding probate for my late father’s estate.

I would consult with her again or with others at your firm she might recommend should the need arise.

Charles Smith (Wills and estates)

8 January 2018

With the help of Helen Phelps, the redrafting of my will went very swiftly and smoothly to my considerable satisfaction.

DS (Wills and estates)

12 December 2017

Being confined to a nursing home, I was more than happy with the assistance provided by the legal firm Snedden Hall & Gallop, in regard to the closure and transfer of my late wife’s bank account.

This service, in conjunction with previous assistance from this firm to a stranded client, has ensured that I would not go elsewhere should I have a future need.

G Cleverly (Wills and Estate 2)

22 March 2018

Gillian Hunter assisted me recently by reviewing my Will and Enduring Power of Attorney documents.

It was nice to speak with someone as across her subject as Gillian is.

Margo Hodge (Wills and Estates)

17 July 2017

Gillian Hunter and the team at SHG were professional, efficient and understanding when it came to obtaining probate and dealing with my late mother’s estate.

Noelene V (Wills and Estates)

13 March 2018

We are clients of Gillian who has worked with us on the recent revision of our wills.

The result has been that our wills now are much easier to read and understand. We also found Gillian was very patient in answering all our questions and any special requirements we had have been reflected in the wills.

We found the experience to be a very positive one. We are happy to recommend Gillian Hunter and Snedden Hall & Gallop.

R & D Steele (Wills and Estates)

11 October 2017

What does a client want to know about a lawyer?

You want somebody who achieves a successful outcome.

As a client, you want a lawyer like Tanya Herbertson who is responsive to your needs, keeps you well informed, listens to you, provides frank advice and is successful.

I was fortunate to have had Tanya Herbertson recommended to me to provide legal advice on an estate dispute.

Her advice was invaluable in helping me achieve a successful outcome in this matter. I appreciated her excellent judgement and the fact that she was responsive to my needs in keeping me well informed as the matter progressed.

Jenny (Wills and Estates)

1 September 2017

I was referred to Ms Tanya Herbertson of Snedden Hall & Gallop for advice and assistance in dealing with the complexities of the Estate (located in New South Wales) of my late brother. He had made a number of wills in the three years before his death, the last two of which were prepared and signed by him after he had been assessed by mental health professionals as being cognitively impaired. The Executor named in his final Will declined to accept appointment because of the evidence of my brother’s mental impairment at the time he made it, and the matter was referred back to me and my daughter as his closest surviving relatives, and Executors named in an earlier Will.

It was necessary to apply to the Supreme Court in NSW for the granting of Probate and appointment of me and my daughter as Executors, based on the earlier Will made by my brother nominating us as Executors.

Tanya was very pleasant and helpful to deal with, was prompt in responding to correspondence and telephone calls, kept moving the matter forward and informing us of progress, and was clearly experienced and knowledgeable in that area of the law. I valued her highly professional and skilled advice while assisting us with the probate application for my late brother’s Estate, and was very satisfied with the outcome she helped us to get.

KR (Wills and Estates)

30 June 2017

My wife and I were recently referred to SHG by our Canberra based Financial Planner for a significant update to our wills and to establish an enduring Power of Attorney.   Ms Tanya Herbertson, Director of the SHG Gungahlin Office, managed our instructions.

These discussions were relatively complex and sensitive; and we were both highly impressed with Tanya’s professionalism, knowledge, practical advice, and open friendly manner.  We had limited time available as we were only on a short break from my work overseas; and found Tanya went out of her way to accommodate us at short notice and to complete the whole process within a few short days to our entire satisfaction. An excellent effort!!

When we return to Canberra later this year, we will continue to retain Tanya, and SHG more broadly, for all our future legal affairs.

C Wall (Wills and Estates)

9 May 2017

Thank you, Tanya & team, for your support through this difficult year. Your personal understanding was as important to me as your legal expertise. I’m grateful for all you’ve done to help uphold my father’s final wishes. I can now dedicate my time and energy to my young family.

Anon (Wills and Estates 1)

9 January 2017

I would like to thank you, Tanya, for successfully working through probate for our late father.  Even though I was in Sydney you provided a process that was seamless, timely and stress-free, and I really thank you for that.

Your assistance in closing the affairs of both my mother and father in a professional and friendly manner have been greatly appreciated.

Ms C (Wills and Estates)

12 June 2015

Now that Tanya’s work relating to the Estate of my late wife has been concluded, I wanted to express my satisfaction and thanks. On the one hand, you have consistently been professional and painstaking, and on the other you have been most helpful, patient and professionally pleasant to me throughout. All of this made the process as efficient and understandable to me as possible. I am grateful and will of course be asking you to undertake any further legal matters that there may be on my behalf.

G.H Taylor (Wills and Estates)

19 November 2015

Many thanks Tanya, for your guidance and assistance in working through a deceased estate.

I must say, as a first time participant in this process, it was a lot more complicated than I thought, but you and your staff made it a lot easier to navigate.

Tom D (Wills and Estates)

12 November 2015

I employed Tanya Herbertson and her team at Snedden Hall & Gallop to finalise my late mother’s estate.

Tanya was responsible for providing me with sound advice; managing my late mother’s financial estate while probate was being applied for; and drafting and filing the application for probate affidavits with the Supreme Court to officially recognise my late mother’s draft unsigned will, with her handwritten amendments, as her last will and testament.

Due to Tanya and her team’s efforts, the Supreme Court was satisfied that there was sufficient evidence that my late mother’s draft unsigned will represented her last wishes even though she was not able to sign it and have her signature witnessed prior to her passing away. During the entire process, Tanya and her team always acted professionally and compassionately. I highly recommend Snedden Hall & Gallop to anyone requiring assistance in wills and estate matters.

Anon (Wills and Estates 2)

5 October 2015

Gillian Hunter helped me to prepare writing my Will. I found her assistance and advice very helpful. She was patient and l felt confident that she was genuinely wishing to give me the best advice. She is an efficient and competent solicitor.

Jane Reynolds (Wills & Estates)

28 June 2018

Tanya Herbertson and Helen Phelps know their law and the legal processes. They are on-time, courteous, thoughtful, sensible and smart, very good at explaining what is going on and what could be done, and what to expect. Very nice to deal with. A credit to their profession!

I’d have no hesitation in recommending your firm to other people.

Bronwen Levy (Wills and Estates)

10 July 2018

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