Services  Estates, Wills & Powers of Attorney
Make sure that you control what happens to your assets upon your death.
What is a Will?
A Will is a legal document that sets out how your property will be distributed after your death and the names of the various persons who will receive that property . A person making a Will is called a “Testator” and a person receiving a gift under a Will is called a “Beneficiary”.
Why do I need a Will?
Making a Will provides you with control over who gets your property after your death. By making a Will you can make choices about how your property will be distributed. For example, your Will may make provision for a particular family heirloom to be left to the appropriate family member or for particular items of property to be left to those who need them the most. A Will also gives you the opportunity to remember close friends who are not related to you by blood or marriage, charities and others of significance in your life.
It is of no consequence whether or not you are on the pension and living in a rental apartment or whether your assets comprise a property worth millions of dollars. You never know whether you may be entitled to compensation for the consequences surrounding your death or payout on a policy that you forgot or didn’t know you had.
If you have made a Will before and your circumstances have changed, the earlier Will is cancelled by the one most recently made.
Who should have a Will?
Every adult capable of making a Will should have one. If you chose not to make a Will or have not done so as yet, your property will pass to someone else according to intestacy laws and not in accordance with your wishes. You should not rely on the fact that your estate may pass directly to your spouse, as there are now recognised entitlements for de facto spouses and other dependents. To create a Will you must be of sound mind and over the age of 18 years (unless under 18 and married). A Will allows you to select executors and trustees to administer your estate and to choose guardians for your children. It also gives you control over how you wish to dispose of your own body and any other wishes that you may care to express.
Intestate
If you die without a valid Will it means you are “intestate” and the New South Wales Government has passed new laws controlling what happens to your assets (see our news and information section). These laws provide a formula under which your property is distributed. Sometimes the application of the formula results in unintended and unfair outcomes. Often these unfair outcomes result in aggrieved relatives making application to the Court to seek a share of the estate.
Spouses usually travel together, so it is no peace of mind if all your assets are in joint names with your spouse because it is possible that you could both be killed at the same time, ie both dying intestate. In addition, it is not uncommon these days for families to comprise children from previous marriages and the issue of who gets what can become very complex in the absence of a valid Will.
Intestacy laws do not automatically guarantee that your spouse or children will get your estate.
When should you change your Will?
You should make a new Will:
- You have married since you made your last Will;
- You have divorced since you last made a Will;
- The circumstances of the persons appointed as your Executor have changed;
- The circumstances of any of the beneficiaries you have named in your Will have changed;
- There have been births or deaths in the family;
- Circumstances of a beneficiary have changed to the extent where it would be appropriate to re adjust the benefit to that beneficiary under the Will.
Can you make your own Will?
The Courts have been interpreting the language used in Wills for hundreds of years. As a result, any words and expressions used in Wills have particular legal meaning which are different to the meaning we associate with those words or phrases in day to day conversation. Any person who prepares a Will who is not aware of legal definitions of some of the words used, runs the risk of creating an ambiguous or invalid document. Fortunes have been won and lost fighting in Court over how a home made Will should be interpreted by the Courts. Most lawyers will tell you that the few dollars that can be saved by doing it yourself do not justify the risks, especially when it is not uncommon for a Will to be dealing with hundreds of thousands of dollars worth of assets. It is your decision whether you wish to make a do- it- yourself Will – get it right and you’ve saved yourself the cost of getting a lawyer to do it for you. Get it wrong- and you run the risk that your estate could incur tens of thousands of dollars in legal expenses to fix the problem.
Before you decide to draft your own Will, you must take into consideration that there is a risk that the court may have it declared invalid. Laws that govern Wills can be complex and it is best to have your solicitor prepare your Will. If you have children, own a business or a trust or own any assets, you will gain peace of mind by knowing that they will be taken care of according to your wishes. We can can write you a Will that you can be sure is legal and effective.
Recently in Australia there has been an increase in the number of people using a “Will Kit” and the internet to draft there own Will. This may not be ideal for you depending upon the size of your estate, the type of assets in your estate and the complexity of laws. The requirements of a formal Will are very demanding and it is easy to make a mistake that could make the Will invalid. If there is a mistake in your Will or it is unclear it may be held invalid. In addition, making your Will on the internet creates problems as to proving your identity and the authenticity of the Will. There is also no assurance that some relative or friend has not influenced your decision. A Will also has strict procedures in regards to the manner in which it must be signed. A Will incorrectly drafted may also cause unwarranted tax liabilities. By asking us to prepare your Will for you, you can be assured that your wishes will be attended to.
Where can I get a Free Will?
Some organisations such as the Public Trustee will prepare your Will free of charge. Such organisations are able to offer this service because the cost of preparing the Will is absorbed into their administration fees. Before you decide to arrange for an organisation such as the Public Trustee to prepare your Will, it would be prudent to bear in mind that in most cases the costs paid by your estate to the Public Trustee to administer and distribute your estate are far greater than the cost associated with arranging for a Solicitor to prepare your Will and for a Solicitor to assist your Executor to administer and finalise the distribution of your estate.
Personal Representative /Executor
A personal representative, otherwise known as an Executor and/or trustee is responsible for making sure that your property is distributed according to your wishes as set out in your Will. A personal representative is usually a person who is capable and someone you trust, for example - your spouse, a relative, and friend and can even be your accountant or solicitor. A person under the age of 18 cannot be appointed a sole executor.
We can help you fulfill your legal obligations if you have been appointed as an executor under a will.
Children
Although Courts have the ultimate authority to appoint a guardian, a Will is the vehicle in which you may tell the court who you want to raise your children. A Will can also set out what assets your children will receive, how the assets will be distributed and who will manage the assets until your children reach the age that you prescribe as being the age in which they are able to manage those assets themselves.
What is an Estate?
An estate comprises all the property that you own at the time of your death. Property includes everything you own for example- your home, land, motor vehicle, shares, money in the bank, insurance policies, cash, furniture etc.
Some property is not controlled by Probate rules or rules of intestacy. These are real property that passes to the surviving joint owner and life insurance and superannuation policies that will go to the nominated beneficiary.
You can give your property to any person or groups you choose in any manner you choose, including your favourite charities. However, there may be some laws that limit what you can do, check with your solicitor. You can also leave a gift of money, jewellery, cars or any other property real or personal.
If you state in your Will that you wish to disinherit a potential beneficiary, that potential beneficiary may still be able to challenge your Will after you die. However, the Court may take your wishes into consideration, so you must state the reasons why you wish to disinherit them.
A Living Will
“Except for rare life and death matters, nothing is as important as it first seems”. Jackson Brown.
A living will is a medical instruction that will tell your family what your wishes are if you become incapacitated. For example - if you are ill, injured or on life support and it has been affirmed that you will live in a persistent vegetative state, you can direct that life support measures be stopped and that you be allowed to die. A Living Will sets out the kind of care you want if you had a terminal condition and were unable to make health care decisions. It tells your family, friends and medical providers your desires relating to health care. It is a brief statement indicating your wishes that certain medical treatment be either withheld or withdrawn. You must be a competent person and over 18 to make a Living Will.
A Living Will is not binding but does provide a guide for carers.
What is a Power of Attorney?
A Power of Attorney is a legal document that sets out the name of a person/s that you wish to handle your financial affairs and property matters on your behalf, if you are unable. For example – if you go overseas or are physically unable to attend to certain affairs.
An Enduring Power of Attorney is a legal document where you give someone the power to make financial and legal decisions for you, for example - managing your bank accounts, your property or paying bills. It is the only way you can have control over who will make decisions on your behalf if you are ever unable to do so yourself. If you lose the capacity to make decisions permanently, for example through dementia or an acquired brain injury from a car accident, or temporarily, by becoming unconscious as a result of an illness, your rent and other bills will be taken care of because an enduring power of attorney can make any financial and legal decisions that you can. An enduring power of attorney cannot be used to make medical treatment or lifestyle decisions.
You can place conditions and limitations on the Power of Attorney. You can appoint an attorney if you are over 18 years of age and have the capacity to make the appointment i.e. know what you are doing, to understand the consequences of your actions and to make choices based on your knowledge and understanding.
This attorney must be over 18 years of age and have the capacity to be your attorney. You can appoint any person or organisation, as long as they agree to take on the role. They should be someone that you absolutely trust to look after your best interests. You may appoint more than one attorney. The attorney must accept the appointment in writing.
Appointment Of Enduring Guardians
An Enduring Power of Guardianship is a legal document where you give someone the power to make personal and lifestyle decisions for you when you are unable to make these types of decisions for yourself, for example - where you live, who you see, which services you will have, which doctor you will see, how your health care should be maintained or who can visit you.
You can choose the limits that you wish to set on what the guardian can do for you and give them directions on how it is to be done. An enduring power of guardianship cannot be used to make financial and legal decisions, they can agree to medical treatment but cannot refuse medical treatment. In addition, an enduring power of guardianship cannot make a Will for you, vote for you, override your objections or cannot consent to you marrying anyone.
You can appoint any person you choose, as long as they agree to take on the role, are over 18 years of age and have capacity. They should be someone that you absolutely trust to respect your wishes. You can also choose to appoint a second person (an alternative guardian). They can only make decisions on your behalf when the first guardian is unable. The enduring power of guardianship takes effect when you are unable to make your own personal and lifestyle decisions and this will usually be determined by a medical practitioner. This power ends when you die or upon revocation by you.
Contesting a Will
We regularly advise Executors or others regarding the ability to challenge a Will. Often a Will is challenged because a person was entirely left out of it in circumstances where a Court considers that provision should have been made for them.In many cases a person was left a gift in a Will which was simply inadequate in the individual circumstances.We can advise regarding a possible challenge and your chances of success.
We can also represent the Executor in defending claims against a Will.Settling such claims is not always the better course.Ocassionally we recommend to the Executor that a clam be rigorously defended,and have done so successfully, resulting in the preservation of the Estate according to the Will\'s wording and the original intention of the deceased person.
What can we do for you?
- Create a Will to suite your circumstances and to meet your personal wishes;
- Prepare your valid Will for you;
- Prepare your Enduring Power of Attorney for you;
- Prepare your Appointment Of Enduring Guardians for you;
- Provide legal advice as to the Will, Enduring Power of Attorney and Appointment Of Enduring Guardians.
- Advice on any possible Taxation liability;
- Answer all your questions.
- Assist you if you have been appointed an Executor in a will.
- Challenge (or defend) a Will.
In the past, a person’s will has been the major focus for estate planning. In present times however, due to ongoing changes, a person’s will has become just one part of the process in achieving estate planning objectives.
We can assist you with:
- Creating/ changing your will;
- Creating permanent and temporary Powers of Attorney;
- Appointing Powers of Enduring Guardianship.
- Estate planning.
For advice on estates, wills and powers of attorney or appointments of enduring guardianship contact Danny Bricknell or Peter Howell of this office on 9807 3222.
The content of this website provides basic information only as an overview. Nothing should be taken as legal advice or be relied upon. No responsibility can be accepted by Osborne Bricknell Howell Solicitors or its author for loss occasioned to any person doing anything as a result of the publication of this brochure.
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