Wills & Estates

We are an established and trusted law firm with years of estate planning and estate administration experience. If you want to control who ultimately receives your hard-earned assets, ensure that somebody you trust can make decisions for you if you are incapacitated, and minimise the potential for disputes to arise after you die, we can help.

Making a Will

A valid Will determines who should benefit from your estate when you die (your beneficiaries) and who will be responsible for administering it (your executor/s). A Will can be simple or complex, may appoint guardians for minor children and can also provide directions for funeral arrangements.

Anyone over 18 years of age with legal capacity can make a Will. Legal capacity means you are of sound mind and understand what you are doing.

Making a carefully considered Will helps to ensure that:

• your executor understands how you would like your affairs managed
• you are providing for the right people when you die
• your assets will be distributed as you instruct
• disagreements amongst your family are avoided or minimised
• the potential for a claim against your estate is minimised

The complexity of your Will is generally determined by your circumstances, family structure, assets held, and your intended beneficiaries. In some circumstances, it may be beneficial to include a testamentary trust in your Will.

A testamentary trust is a discretionary trust created in your Will which comes into effect after you die. The trust assists in safeguarding assets from third-party creditors and protecting at-risk beneficiaries. We can explain how a testamentary trust works so you can decide if this will be of benefit in your situation.

As your circumstances change throughout the course of your life, your Will should be updated to consider these changes, and to ensure that it continues to reflect your wishes.

Powers of Attorney

An enduring power of attorney is a document whereby you appoint a relative, friend or trusted advisor to make legal, financial and personal decisions on your behalf.  As an “enduring” power, the appointment endures beyond loss of cognitive capacity, provided of course that you do not revoke the power whilst you retain cognitive capacity.

Your attorney has certain duties and obligations when acting under the power, including acting in your best interests, avoiding a conflict of interests and keep accurate records and accounts.

An appointment of medical treatment decision maker is entered into pursuant to the Medical Treatment Planning and Decisions Act and authorises whomever you appoint to make decisions regarding your medical treatment, including the refusal of treatment.  The power only applies when you do not have capacity to make your own medical treatment decisions.

The Medical Treatment Planning and Decisions Act sets out how a “medical treatment decision maker” must make decisions when acting under the power.  They must make the medical treatment decision for you that they reasonably believe is the decision you would have made if you had decision making capacity.

Administering an estate – duties of executors and administrators

An executor is the person appointed under a Will to deal with a deceased person’s affairs. An administrator has the same role however is appointed by the Court through letters of administration when a person dies intestate (without a Will) or a person appointed under the Will is unable to act as executor.

Executors and administrators are the legal personal representatives of a deceased person and have significant legal responsibilities. They must ensure they are protected from potential liability in the event of a dispute or claim against the estate.

The tasks of an executor or administrator typically include to identify, secure, and protect estate assets, pay estate debts, and distribute the proceeds of the estate in accordance with the Will or the laws of intestacy. During the administration process, they may need to deal with various other parties such as accountants, financial institutions, real estate agents and brokers. They may also need to consider matters outside their area of expertise, such as the tax implications on the sale or transfer of assets, the order of payment of debts, the preparation of estate tax returns and the potential for a family provision claim to be made. An estate lawyer can provide valuable assistance to help executors and administrators effectively carry out their duties.

What is Probate?

An executor may need to apply for a grant of probate through 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 estate. The requirement to obtain probate usually depends on the size of the estate, the nature of estate assets and how they are held. Most financial institutions will require a grant of probate to release funds over a specified amount. We can advise whether a grant of probate is required or recommended in your circumstances.

Testators Family Maintenance Claims

If you have been unexpectedly left out of a Will or provided a lesser share than you anticipated, you may be eligible to bring a testators family maintenance claim. If you are successful in your claim, the assets of the estate may be re-distributed in your favour. There are many reasons why a Will may be contested on the basis that a deceased person had a moral duty to provide for somebody and failed to do so. We can help if you find yourself in this situation.

The eligibility criteria to bring a claim varies between different jurisdictions in Australia and strict time limits apply for bringing a claim, so it is important to discuss your circumstances with a lawyer promptly if you wish to make a claim.

To be successful in a testators family maintenance claim, an eligible person must also show that at the time of death, the deceased person had a moral duty to provide for their proper maintenance and support and the deceased’s Will (or proposed distribution of an intestate estate) fails to do so.

Many factors are considered in determining the merits of a claim and every case is different. Many claims are settled through negotiation or mediation between the respective parties and their legal representatives.

Confronting our own mortality or potential incapacity can be difficult, and discussing these issues is often avoided. However, taking steps to do so while you are able can bring great peace of mind to you and your family now and into the future. Our knowledgeable team can assist with all aspects of your estate planning or with the administration of an estate.

If you need assistance, contact [email protected] or call 03 51761345 for a no-obligation discussion and for expert legal advice.