Wills & Estates
What We Can Do for You
We can assist you with all succession law related matters, including:
Wills
Enduring Power of Attorneys
Advance Health Directives
Grant of Probates
Estate Administration (transfer of real property, bank account closures, sale or transfer of shares, deeds of appropriation)
Estate Disputes including Contesting a Will (family provision claim) - find out more here
Intestate Estates (when those who die do not have a valid will).
Administering an Estate
What happens if a family member dies without a Will?
If you are the next of kin you can apply for a grant of Letters of Administration, which gives you authority to deal with estate assets and liabilities and finalise the estate as an executor would.
The Role & Duties of an Executor
An executor is responsible for distributing the estate according to the terms outlined in the deceased person’s Will. Executors must also protect estate assets in accordance with the various laws and rules that govern estate administration in Australia.
An executors duties can include:
Organising the funeral and notices
Locating the Will and obtaining a copy of the Death Certificate
Making sure property and assets are safe and secure
Applying for Probate
Paying the liabilities of the estate
Collecting monies belonging to the deceased from financial institutions and insurance companies
Collecting debts owed to the deceased
Lodging estate tax returns
Selling and transferring property and other assets
Reporting to beneficiaries
Distributing the proceeds of the estate to beneficiaries
Setting up trusts.
Do I need assistance from a Solicitor?
Executors have significant legal responsibilities and may need to protect themselves from personal liability. This is particularly so with complex estates or where a family provision claim is made.
Executors may also need to consider matters outside their areas of expertise such as the tax implications on the sale or transfer of assets, the order of payment of debts, and the consideration of a family provision claim. This is why most executors choose to be guided by professionals such as solicitors and accountants. Further, these professional costs are usually covered by the estate.
What if I do not want to be an Executor?
Just because you have been named an executor doesn’t mean you have to accept the responsibility. If there is another executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else.
What is Probate?
Probate is recognition of the Will’s validity and permission from the Supreme Court for the executors named in the Will to carry out their duties in relation to the estate. You will likely need a grant of Probate to deal with the assets of an estate, like selling property and obtaining bank funds.
Want to Know More?
Wills
Making a Will
A Will is a legal document that records how you would like your assets distributed after you die and appoints an executor to administer your estate. The person making the Will is known as the testator.
There is no simple answer about how to prepare your Will – this depends on your assets, your family, and personal circumstances. What is certain, is that you need to make a Will that is clear, avoids confusion and conflict between your loved ones, and that is legally valid. This helps to protect your family from costly and stressful legal disputes.
Once prepared we can also store your Will (and any other estate planning documents) in our safe custody at no charge - we provide you with a copy of your document/s.
Choosing your executor/s
Your executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that the wishes outlined in your Will are upheld.
The role of an executor is a responsible one and while it can be tempting to choose your best friend or eldest child simply because it seems the right thing to do, it is important to consider whether that person has the capacity to carry out the role.
The question of who to appoint as executor is an important one and something we can guide you on when preparing your Will.
Choosing your beneficiaries
You can choose anybody as a beneficiary of your estate and distribute your assets in any way you like, however if you do not provide for your family and dependents, your Will could be contested, depleting hard-earned assets through expensive legal costs. We can help guide you when making this decision.
You should also consider the effects that an inheritance may have on your beneficiaries. In some cases, a testamentary trust can sidestep potential taxation problems, so it is important that you get specific advice about your situation.
How do I know if my Will is valid?
Firstly, at the time of making their Will the person must have testamentary capacity. Generally, this means that they must:
Know what a Will is
Know the general assets of their estate, understands that certain people typically have a right to inherit from their estate
Be able to make rational and informed decisions about their Will.
If there is any doubt or potential for dispute as to capacity, you should obtain written confirmation from a doctor and store a copy of this with your Will.
How often do I need to review my Will?
You should review your Will periodically and especially after any major events such as the birth of children, marriage, separation, divorce, the death of a beneficiary or if your assets change significantly (e.g. real estate purchase or sale). Reviewing your Will regularly ensures that it continues to represent your wishes and is the best fit for you and your family.
What happens if I die without a Will?
If you die without a Will, you will die ‘intestate’. If this occurs your assets will be distributed according to the rules of intestacy.
The rules establish a defined hierarchy for distributing an estate among their next of kin, aiming to align with societal norms regarding who should inherit. However, the rules may not reflect your individual preferences / circumstances. That is, someone could be legally entitled to more of your estate than you might have preferred.
Testamentary Trusts
What are they?
A testamentary trust is a more complex Will that creates one or more trusts after the testator dies. These trusts can help protect vulnerable beneficiaries, safeguard assets from third-party creditors, and provide flexibility in the distribution of assets resulting in more optimal tax outcomes. Talking to a lawyer and financial planner can help tailor your Will to address these important considerations.
Other Estate Planning Considerations
An effective estate plan helps you to prepare for the inevitable and the unforeseen.
In addition to preparing a valid Will that reflects your wishes and appoints somebody you trust to manage your estate after you die, you should also consider having:
A Power of Attorney to appoint somebody you trust to manage your legal and financial affairs if you are unable to do so yourself
An Advance Health Directive to ensure that health and welfare decisions that align with your wishes and values can be made on your behalf if you are incapacitated.
We understand the complexity of estate planning and the potential pitfalls in this area. We ask the right questions and prepare your Will and other documents to ensure your assets are distributed to your intended beneficiaries, and that your affairs are entrusted to those you choose if you are incapacitated.
Once prepared we can also store your estate planning documents in our safe custody at no charge - we provide you with a copy of your document/s.