Wills & Estates
When it comes to estate planning, getting advice from professionals can help protect you and your family and make the most of your hard-earned assets. Preparing a Will, appointing an attorney, and using trusts to help protect vulnerable beneficiaries can all form part of an effective estate plan. We have considerable expertise in this area. We can help you plan for the unforeseen and the inevitable whether your family and financial circumstances are simple or complex. Our comprehensive wills and estate planning services include:
- Preparation of Wills
- Powers of Attorney
- Appointments of Enduring Guardian
- Elder Law and Guardianship Tribunal matters
- Probate and Estate Administration
- Business Succession Planning
- Family Provision Claims
- Estate Disputes and Litigation
Preparing a Will
Planning your estate typically starts with making a valid Will that provides clarity for your family. Your Will should appoint one or more executors who will be responsible for administering your estate, and direct how your assets will be left or divided amongst your beneficiaries. Your Will can also appoint guardians should you die leaving minor children, and provide directions for funeral arrangements.
When preparing a Will, there are additional steps you can take to help protect assets for future generations. If you have minor or vulnerable beneficiaries, a testamentary trust might be the right tool to help you look after them. A testamentary trust is made under a Will and begins when the testator (person making the Will) dies. Trusts can help you to financially support someone without giving them direct control of assets. Testamentary trusts can also help play a role in protecting your estate from third-party claims.
Powers of Attorney
A power of attorney is a legal document you can make that appoints a trusted person to act on your behalf with respect to certain matters. This person is known as your attorney. Your attorney can act for you if, for example, you are overseas, are out of action for a while after having an accident, or simply reach a stage where you need more help managing your affairs. An enduring power of attorney enables your attorney to act for you if you are incapacitated (i.e., you can no longer make decisions for yourself).
Knowing that you have an attorney to act for you when you need it can give you peace of mind but requires careful consideration. We can explain the various options for structuring your power of attorney so you can make an informed decision and have documents prepared that are tailored to your needs.
Deceased Estates and Estate Administration
After a person dies, someone needs to look after their property and finalise their financial and legal affairs. This is referred to as ‘estate administration’. Administering an estate is usually carried out by the executor/s appointed in the deceased person’s Will or an administrator (appointed by the court) if a person dies intestate. Executors and administrators have specific legal responsibilities and may face complex matters with which they are unfamiliar. They will usually deal with various third parties including the estate beneficiaries and may even need to manage a dispute or family provision claim. The process can be complex and overwhelming, but we can help.
Before administering an estate, executors often need to obtain a grant of probate from the Supreme Court. Probate ‘proves’ the Will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the Will.
When a person dies intestate, a family member will usually need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised. Once letters of administration are granted, the deceased person’s assets are distributed according to a prescribed formula set out in legislation.
While some people undertake the duties of administering an estate themselves, most find that they need the assistance of a lawyer to ensure that they meet their obligations as executor or administrator, particularly if they need to apply to the court for probate or if there are complex issues involved.
Estate Disputes
Unfortunately, it is common for a death to cause disruption to a family, especially when it comes to the distribution of the deceased’s assets. Estate disputes come in all shapes and sizes and can have long-term implications for the harmony of a family. Although some disputes end up in the Supreme Court, it is almost always recommended to resolve a matter without recourse to litigation. A court hearing is time-consuming, stressful, and expensive and there are several alternatives that a lawyer can help you explore to reach a fair and reasonable outcome without aggravating relationships that are already strained.
We manage a range of complex estate disputes including:
- Challenges to the validity of a Will – based on a person’s capacity to make the Will, circumstances of undue influence or fraud.
- Disputes over the interpretation of a Will – concerning ambiguous terms or language or confusion over the meaning of certain clauses in a Will.
- Family provision claims – claims for provision or further provision from an estate made by eligible individuals who believe they have not been adequately provided for in a Will.
- Challenges to the appointment of an executor – when there are concerns about an executor’s suitability for the role or there are conflicts of interest.
If you need help, contact [email protected] or call 0401 513 190 for expert legal advice.