Wills &  Estates

Estate planning involves more than just drafting a Will. Estate planning involves obtaining an understanding of a person’s assets, resources and liabilities, their personal circumstances and discussing their wishes and objectives. Although a Will is important in determining what happens to your property after you die, there are other documents which you should have in place which afford you with greater protection whilst you are still alive. These documents are the Enduring Power of Attorney and the Appointment of Medical Treatment Decision Maker form.

When drafting a Will, you should also consider important factors such as your superannuation, business successful planning, as well as the implications of any trusts of which you are a Trustee or Beneficiary.

We provide a comprehensive estate planning service tailored to your individual circumstances that considers the future control of your assets and resources and ensures that your hard-earned assets are protected for your future, and ultimately, for the benefit of your loved ones.

Who can make a Will?

Anyone aged 18 and over can make a Will, provided they have the mental capacity to understand what they are doing. People under 18 can only make a valid Will if they are married or have a court order. A Will includes details of how a person’s assets such as houses, cars, shares, cash will be handled upon the person’s death.

Wills should also appoint and executor and specify the rights and powers of trustees. A will can also contain provisions regarding how the deceased person’s remains are to be dealt with, organ donation and who will act as a guardian for any children of the deceased. These are but some of the important factors which you must consider when drafting a will and engaging in estate planning.

Are you a business owner?

If you are a business owner, you should consider including a business succession plan as part of your estate planning to ensure that control of your wealth is passed to your intended beneficiaries.

Business succession plans are vital for proprietors and should be tailored for each individual business. It is important to consider; the type of business, number of proprietors, existing business structure, economic factors, and personalities of the business owners, their families and the staff.

Your plan should identify who you would like to take over your business, for example, a family member, employee, business partner or outside buyer. Your successor should have the right skills to manage the business and be happy to do so.

Enduring Power of Attorney (POA)

A POA is a legal document that allows you to elect a person who will make financial and personal decisions on your behalf. This person will be called your ‘attorney’ and will be able to make decisions on your behalf relating to financial matters such as property and investments, as well as personal matters such as living and care arrangements. . POAs are flexible documents that allow you to place limits on your attorney’s power to act for you. You can also appoint one or more people, together or separately, to act as your attorney. You decide when your attorney can start to make decisions on your behalf. This can either be immediately upon making of the attorney document, upon a medical practitioner certifying that you have lost capacity to make decisions for yourself, or at an otherwise specified time. It is important to note that everyone is different, some people might only feel comfortable giving their attorney these powers in the event that they have lost capacity, others might be comfortable giving their attorney these powers immediately upon signing the document.

There is no ‘right’ answer in matters of estate planning. Each individual is living in different circumstances and has different wishes and ideals.

Appointment of medical decision maker

A Medical Treatment Decision Maker (MTDM) is a person that you choose to make decisions relating to your health care if you are unable to do so, they are your voice for medical decisions.

Your MTDM should be someone trusted and well known. You should make it clear and ensure your MTDM understands:

  1. that you have selected them as you MTDM and have advised your family and friends of this;
  2. that they are comfortable with the decisions you have requested them to make in certain situations;
  3. your views and wishes on any medical treatment or surgery you may need, medications and life support.

What is Probate?

When a person dies leaving a Will, a Grant of Probate is usually obtained from the Registrar of Probates in the Supreme Court. Probate is a court order confirming that the Will is the deceased’s last valid Will in existence.

If a person dies without a Will, the estate will be distributed according to a formula set out in legislation. An application for Letters of Administration must usually be made to the Supreme Court, generally by the person who has the greatest claim to the estate, who becomes the administrator of the estate once an order has been made.

If all of a couple’s assets are in joint names, probate may not be necessary if one of them dies. There are other circumstances where probate may not be necessary, for example, if the only asset is a small bank account.

A Grant of Probate or Letters of Administration enables the executor or administrator to collect and deal with the assets of the estate, including selling or transferring any real estate of the deceased, access to bank accounts and investments, and the collection, administration and distribution of the deceased’s other assets.

Are you an executor?

Acting as executor or administrator of an estate can be daunting, particularly when you may be grieving the loss of a loved one. Administering an estate is often a lengthy process and requires a knowledge of financial, legal and tax matters. It can be an emotional and challenging time for all involved. If your duties are not carried out properly, you may be exposed to personal liability.

We can provide advice and help you navigate your duties as an executor (or administrator) of an estate. We can help:

  • Locate and obtain the Will and any title deeds where they are held by other lawyers
  • Obtain a Grant of Probate or Letters of Administration
  • Deal with all aspects of the administration of the estate
  • Deal with all estate debts and liabilities
  • Defend any claims against the estate
  • Distribute the estate to the beneficiaries in accordance with the Will

Contesting a Will

A Will may be open to challenge if the deceased was incapable of making it, the meaning of the Will is unclear, the Will was incorrectly executed or was tampered with, or it was executed under pressure from others.

A Will can also be challenged if insufficient provision has been made in it for a spouse, children or other people the deceased had an obligation to provide for, as set out in the laws relating to Testator’s Family Maintenance. Except in very limited circumstances, an application must be made within six months of the grant of probate.

If you are thinking of making a claim against a Will or you are the executor of an estate where a claim has been made, our lawyers can advise you on how best to proceed with a view to resolving the dispute without unnecessary costs and stress for all parties. Many such claims are settled without the need to go to court.

If you need assistance, contact one of our lawyers at [email protected] or call (03) 9432 3131 for expert legal advice.