Wills and Estates

We can assist with all aspects of your estate planning, from preparing Wills and Powers of Attorney, to helping executors and family members administer the estate of a loved one.

It is particularly important to review and update your Will and estate plan when your family circumstances change, for example, if you have recently separated or divorced. Receiving legal advice about your Will at the time of separation or divorce can help to protect your assets. You may need to revise who is included in your Will and the assets available for distribution after a property settlement.

What is a Will?

A Will is a written document recording what you want done with your property and assets after you die. If a Will is valid, on your death, the person you have nominated as your executor will gather and distribute your assets in accordance with your wishes.

If you do not have a Will at the time you die, you will have died intestate. If this happens your assets will be distributed according to a prescribed statutory formula, to your surviving spouse or partner and children or grandchildren. If you do not have a spouse/partner or children, your assets will be left to your parents, siblings, nieces and nephews, grandparents, or uncles, aunts, and cousins.

Having a valid Will that accurately reflects your testamentary wishes provides certainty for your family after you die, helps minimise potential disputes, and generally results in a more efficient and cost-effective distribution of your estate.

Estate planning for blended families

There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and personal assets may change from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be implemented. The important thing is to discuss your circumstances and objectives with your lawyer so that your wishes can be properly set out in your Will and other estate planning documents.

Enduring Powers of Attorney

An enduring power of attorney allows you to appoint a person to make decisions on your behalf regarding legal and financial matters if you lose capacity. You should only choose somebody you trust implicitly as your attorney. An attorney must act in your best interests, and it is a good idea to talk to the person you wish to appoint and make sure they are comfortable and able to assist.

You can also make a general power of attorney appointing somebody to help manage your affairs for convenience or as you age. You can provide limitations on the authority regarding when the person may act as your attorney (for example, only while you are travelling overseas) or the types of matters they may deal with.

Talking to a lawyer about your circumstances can help you make a decision regarding the most appropriate document to put in place for your needs.

Appointment of Enduring Guardian

An Appointment of Enduring Guardian enables you to appoint a person to make decisions of a non-financial kind on your behalf, if you lose but capacity to do so. This may, for example, cover decisions about where you live, what services you receive and decisions about your health care.

Probate and letters of administration

Probate is a grant made by the Supreme Court that proves the Will of a deceased person. A grant of probate allows an executor to distribute the assets of the estate according to the Will. The process begins by publishing a notice of the intention to apply for probate so that any creditors or family members intending to make a claim against the estate can contact the executor. A series of documents, including the Will, death certificate and inventory of the deceased’s property, are then lodged with the court. Once probate is approved by the court, the executor may commence distributing the assets of the estate. Probate may not be necessary in all circumstances and a lawyer will advise you whether a grant is needed or recommended.

If a person dies without a Will, the family may need to apply for letters of administration. Usually the next of kin, be it a spouse, domestic partner, or adult child, makes the application to the court who appoints the applicant as administrator which enables him or her to deal with the assets of the estate.

Administering a deceased estate

Executors and administrators have a number of duties and obligations when carrying out their role. They will need to deal with the deceased’s assets and liabilities and finalise the estate according to the Will or the rules of intestacy.

This may involve several steps such as identifying the assets of the deceased, claiming amounts under superannuation and/or insurance policies, closing accounts, paying estate expenses and any debts, and distributing assets to the beneficiaries. The task can be quite daunting and is often carried out under the guidance of a lawyer.

We can help with all your estate planning decisions and will work with you to explain your options in simple terms and prepare your Will and other documents tailored to your specific circumstances.

If you need assistance, contact [email protected] or call 02 9550 9588 for expert legal advice.