Effective Estate Planning
Having an effective estate plan helps you to prepare for the inevitable and the unforeseen by ensuring that:
- your legal and financial affairs are managed by somebody you trust if you are unable to do so yourself;
- health and welfare decisions can be made that align with your goals and values if you are incapacitated;
- a trusted person is appointed to manage your estate and your assets are protected and distributed to your intended beneficiaries when you die.
Making a Will
Everybody over 18 years should have a Will. If you do not have a Will, you will die intestate and your assets will be divided according to the rules of intestacy in each state or territory, which may not be as you would have desired.
A valid Will determines who should benefit from your estate when you die (your beneficiaries) and who will be responsible for administering it (your executors and trustees). A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.
When preparing or reviewing a Will, you should consider your family structure, your personal, and financial circumstances. The risk of a family provision claim being made after you die should also be considered. If you have recently separated, preparing a Will or replacing an existing one is vital to ensure your testamentary wishes accurately reflect your changed circumstances.
We specialise in assisting clients from blended families plan their estates to ensure their wishes are upheld and that the potential for disputes impacting loved ones are minimised. We also have special expertise in succession planning for rural and farming clients.
Getting help to manage your affairs
For a range of reasons, we may need help managing our affairs when it becomes impractical or impossible to do so ourselves.
A Power of Attorney enables someone to handle your legal and financial matters on your behalf and can be used if you are planning to go overseas, suffer from poor health, have an accident or reach a stage in life when you just need more help with these things.
The appointment of an ‘attorney’ enables that person to act in your place and do the things you would normally do yourself, such as signing documents, paying bills and doing the banking. Your attorney can enter into agreements in your name and on your behalf. For this reason, your attorney must be somebody you trust implicitly.
A general power of attorney can last for as long as specified in the document (such as while the ‘donor’ is travelling overseas) or as long as he or she has mental capacity.
A general power of attorney no longer operates if the donor loses capacity to make decisions. Accordingly, it may be more appropriate to prepare an Enduring Power of Attorney while you have capacity to do so. In such cases the authority given to your attorney continues, or endures, if you lose mental capacity.
The documents used to authorise somebody to manage your financial and legal affairs and / or make certain health and welfare decisions for you, and the types of decisions permitted, vary between different states and territories. We can prepare and advise on these documents for all jurisdictions.
Deceased Estates – executors and administrators
After a person dies, someone needs to look after their assets and administer their estate. An executor is the person appointed under a Will to do this. An administrator has the same role however is appointed by the court through Letters of Administration when a person dies intestate or an appointed executor is unable to act.
Executors and administrators have significant legal responsibilities and may need to protect themselves from personal liability. This is particularly so with complex estates or where a potential claim could be made against the estate. Executors and trustees may 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. Obtaining professional advice and guidance in these areas is essential.
Probate and Letters of Administration
An executor may need to apply for probate in the Supreme Court before administering an estate. The granting of probate ‘proves’ the Will of the deceased and authorises the executor to deal with the assets.
The requirement to obtain probate depends on the size of the estate, the type of assets and how they are held. Most financial institutions require a grant of probate to release funds over a specified amount. Probate is also required to transfer real estate that is not jointly held between the deceased and a beneficiary. A grant may also be recommended if contentious issues exist.
A grant of Letters of Administration appoints an interested person administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
Our compassionate team will assist with the legalities after the loss of your loved one providing empathetic guidance and expert legal advice.
Family provision claims
A family provision claim may be made by an eligible person seeking a share or greater share from an estate. Claimants must prove that the deceased failed to make adequate provision for their proper maintenance, education and advancement in life.
Eligible persons usually include a spouse, former spouse, de facto partner, child of the deceased, or certain individuals who were in a close personal relationship with the deceased or who were dependent on the deceased at the time of death. Strict timeframes apply for making claims, so it is important to obtain legal advice promptly.
An executor may need to defend a family provision claim made against the estate. The executor has a primary duty to uphold the provisions of a Will however must also ensure that estate assets are preserved and may need to consider a justified claim that is likely to succeed.
It is sensible to plan ahead, not just for expected end of life events, but for matters as simple as travelling overseas so somebody can keep an eye on things for you while you are away.
We assist clients with important life decisions and will work with you to explain your options in simple terms and prepare the necessary documents tailored to your circumstances.
We can provide home visits for the ill and elderly, so that your documents can be arranged in the comfort of your own home and can also attend ACT-based hospitals in the unfortunate circumstance that you require a document prepared quickly.