Wills & Estates

An effective estate plan may require more than preparing a valid Will. When preparing estate planning documents, it is important to consider various aspects of your life, financial, and personal circumstances.

Making a Valid Will

A valid Will determines who should benefit from your estate when you die and who will be responsible for administering it – those chosen as your executors / trustees. A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.

A well drafted Will should effectively deal with blended families, protect vulnerable beneficiaries, and minimise the potential of your estate assets being exposed to a challenge in the courts.

Testamentary Trusts

A testamentary trust is a more complex Will that creates a trust or trusts after the will maker (‘testator’) dies. The trust assists in safeguarding assets from third-party creditors, protects at-risk beneficiaries and provides potential tax advantages.

Power of Attorney

A power of attorney appoints a trusted family member or friend to look after your legal and financial affairs should you be unable to do so yourself.

The power of attorney can specify the extent of powers an attorney is authorised to exercise on your behalf, such as signing documents, authorising bank account transactions, buying or selling property. It can operate for a limited time, such as while you are travelling overseas, for a one-off transaction.

For the power of attorney to take effect indefinitely, even after you lose mental capacity, it needs to be an enduring power of attorney.

Enduring Guardian

An appointment of enduring guardian appoints a person to make lifestyle, health and medical decisions on your behalf if you lack capacity to make those decisions yourself. A guardian acts as a substitute decision-maker and may consent to medical and dental treatment and living arrangements.

The appointment also authorises health care professionals to share your personal information with your guardian.

Application for a Grant of Probate

Probate is a grant made by a Court that proves the Will of a deceased person, vests title to estate assets in the executor and authorises the executor to deal with the estate. The executor is responsible to pay estate liabilities, distribute gifts, sell and transfer property, arrange estate returns, and generally finalise the estate in accordance with the Will.

There is no legal requirement to obtain probate and applying for a grant may not be necessary for small estates or where property was held jointly with a sole beneficiary. In such cases, the deceased’s share of jointly held property can be transferred to the surviving owner by completing the required documents with the relevant authority or institution.

Dying without a Will – dying intestate

Dying without a Will is referred to as dying intestate. In such cases the deceased person’s estate is distributed in accordance with a statutory formula. The rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin designed to reflect society’s expectations as to who should benefit from the estate.

However, they may not consider the real wishes of the deceased nor his or her unique circumstances. This can result in undesired consequences such as:

• family members or friends missing out from an inheritance;
• a disproportionate distribution of assets between family members or leaving out more needy beneficiaries;
• a distribution to a family member with whom the deceased shared no significant or meaningful relationship.

An application for Letters of Administration is made by an interested person when a person dies intestate or the executors named in a valid Will are no longer alive or are unable to fulfil the role.

A grant of Letters of Administration will appoint the applicant as administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

Administering a deceased estate

Dealing with a deceased estate can be distressing and often involves complex issues at a time of grief and loss. Executors and administrators may need to liaise with a range of stakeholders to ensure the terms of the Will are upheld.

For initial discussion or advice contact us at info@legallysmart.com.au or call 02 6108 3683.