Wills & Estate Planning
Effective estate planning can save your family additional stress and costs after you die and provides assurance that somebody you trust can manage your affairs if you are unable to do so yourself.
Effective estate planning involves:
- assessing your family circumstances
- reviewing assets – how they are held and whether they are likely to change
- ensuring assets are held and distributed in the most tax-effective manner possible
- considering the possibility of a claim being made against your estate
- protecting beneficiaries and assets through trusts
- appointing somebody to manage your affairs if you are incapacitated
- reviewing your plans as your circumstances change
Preparing a Will
Having a valid Will provides clarity and protection for your loved ones. A Will states who should receive your assets when you die (your beneficiaries) and who will have the responsibility of administering your estate (your executor). Your Will can also appoint guardians for your children, if required. It should be tailored to your individual circumstances and not seen as a ‘one-size-fits-all’ solution.
As your circumstances change, your Will should be reviewed and updated if necessary, to ensure that it continues to reflect your testamentary wishes. The following life events may trigger the need to review and update your Will:
- marriage or divorce
- starting a de facto relationship
- having/adopting a child
- the death of a named executor or beneficiary
- buying or selling a property or business
- receiving an unexpected windfall or inheritance
Powers of attorney and guardianship
An enduring power of attorney is used to appoint someone to make financial and property decisions for you if you are unable to make those decisions yourself.
An enduring power of guardianship appoints someone to make health, medical and lifestyle decisions for you if you cannot make these decisions yourself.
These legal documents can help safeguard your interests should something unforeseen happen, like an accident or illness that robs you of your decision-making capacity. In these circumstances, somebody you trust can make important decisions about your money, your living arrangements and your health.
Although attorneys and guardians must act in your best interests, it is important to choose somebody you trust and who will make decisions based on your values. We recommend discussing your circumstances with us so we can provide advice and prepare documents that are tailored to your circumstances. It is also important to discuss your wishes with your family to provide clarity and help avoid unnecessary conflict and stress during difficult times.
Dealing with a deceased estate
If you are an executor or have lost a loved one, you may need to take steps to administer the estate. We can guide you through this process.
A ‘deceased estate’ refers to a person’s property and assets after they die. Those assets may include real estate, cash in the bank, vehicles, shares and stocks, the proceeds of life insurance policies, and household and personal belongings.
The way a person’s estate is distributed after they die is determined by the terms of their Will if they have one, or according to the rules of intestacy if they do not have a Will.
Dying without a Will is referred to as dying intestate, and the deceased’s estate is distributed according to a prescribed formula set out in the Administration Act 1903. Generally, those entitled to receive property may include:
- the spouse or de facto partner of the deceased
- the children and grandchildren of the deceased
- the parents of the deceased
- the siblings of the deceased
This statutory formula of distribution may not reflect the testator’s real wishes, hence the importance of having a valid Will in place.
Probate and Letters of Administration
If a deceased person left a Will, an executor may need to apply for a grant of probate before the estate can be distributed. If the deceased person did not leave a Will, the next of kin or other eligible person may need to apply for letters of administration.
Applying for probate requires an application with supporting documents to be filed with the Supreme Court. When probate is granted, the Court deems the deceased’s Will to be their last, and to be valid, which then authorises the executor to distribute the estate according to the Will.
A grant of letters of administration provides authority for an interested person (the proposed administrator) to deal with an estate when somebody dies intestate. The application is also made to the Supreme Court.
Family provision claims
If you have been unexpectedly left out of a Will, you might be eligible to bring a family provision claim for a share of the estate. The Family Provision Act 1972 provides that the following people may be eligible to make a claim:
- the current spouse or de facto partner of the deceased
- in some circumstances, a former spouse or de facto partner of the deceased
- children of the deceased
- in some circumstances, stepchildren of the deceased
- in some circumstances, grandchildren of the deceased
- the parents of the deceased
Your lawyer can advise if you are eligible. Strict time limits apply for making a claim, so it is important to get legal advice quickly.
The court will consider a number of factors before determining whether to alter the division of assets, including, but not limited to:
- the claimant’s relationship with the deceased
- the competing claims on the estate
- the claimant’s income, lifestyle, medical needs, and educational requirements
- any interdependence between the claimant and the deceased
Estate disputes are generally complex and emotional. That said, many claims can be settled without going to court. We can advise on your eligibility to make a claim and the likelihood of succeeding so you can make an informed decision.
We are experienced lawyers and can assist with all aspects of your estate planning and estate administration, as well as family provision claims and estate disputes.