Wills and Estates
A properly drafted and executed Will allows you to provide for your loved ones in the way you wish. It also provides assistance and guidance to your family and beneficiaries at a time when they are grieving.
Proper forethought in relation to your assets and Estate will ideally cover the following issues:
- Who will you nominate as your Executor(s)
- What assets are yours to bequeath
- How do you wish to distribute your assets
- Ensuring a claim against your Estate is less likely via appropriate drafting of your Will
- Superannuation funds and insurance policies
- Business succession planning
- Testamentary trusts
We pride ourselves on taking care to tailor your Will to your specific circumstances, whether it is a simple Will in straightforward circumstances, or a suite of complex documents covering a multitude of factors.
Once executed, Wills and associated documents should be stored properly and must not be tampered with. We offer the use of a safe storage facility, for storing your original Wills and other important documentation.
Tips for Executors
Who you appoint as your Executor, or Executors, to your Estate an important decision. It is best to ask the person you would like to be your Executor in advance of naming them in your Will, as an Executor has onerous duties to undertake.
Estate Planning and Trusts
“Estate Planning” refers to the overall structure of the documentation in place to manage your Estate after death. This refers to your Will, and any other documents that you have in place to establish the ‘big picture’ of what you would like to happen to you in the case of incapacity and your estate after your death.
In addition to the Will itself, these documents can include Powers of Attorney, Advance Care Directives, Deeds of Family Arrangement, any Trusts you have in relation to your family and business affairs and instructions to your Executors.
Trusts may include any you have or are a beneficiary of, and any partnership agreements or company ownership documents relevant to your circumstances.
Your business interests should be taken into consideration when you are planning your Estate. Forethought in this area can minimise tax and assist you with the appropriate handing over of control of your assets according to your wishes.
We can work with your financial and accounting advisors to ensure your Estate benefits.
Problems with D.I.Y. Will Kits
DIY Will kits are popular because they provide immediate access to the basics of Wills in a non-threatening environment; however they must be approached with caution. It is very rare for DIY Will kits to provide adequately for most people’s circumstances, leading to confusion, delay and distress for family members after a death.
We recommend that legal advice be sought in drafting Wills to avoid much more significant costs to the Estate after death in sorting out the legal difficulties that are often caused by DIY Will kits. In our view, monies in an Estate are better spent on beneficiaries rather than expensive legal bills to interpret and rectify poorly drafted Wills.
Applying for Probate
In many cases, it is necessary for an Executor to apply for a Grant of Probate to give the Executor the authority to administer an Estate. The Grant of Probate is the document issued by the Supreme Court of South Australia which legally authorises the Executor to deal in all matters related to the Estate.
Most Executors of Estates enlist the assistance of a law firm to assist them through the very complex Probate process. There are a number of matters to be taken into consideration, including legal and taxation aspects, family disputes over assets and claims to the Estate made by potential beneficiaries who have been left out of a Will.
Whether an Estate is modest or significant, it is important to the person making their Will, and those he or she leaves behind. The complicated steps involved in applying for Probate can be made easier by utilising prudent legal advice to assist you to navigate through the process.
Once a Grant of Probate is made, we can assist with the administration of the Estate to your beneficiaries.
Problems with D.I.Y. Probate Kits
Like DIY Will kits, D.I.Y. Probate kits are popular because they provide immediate access to the basics of applying for a Grant of Probate in a non-threatening environment; however they must be approached with caution. There is a very significant possibility that an application for a Grant of Probate utilising a D.I.Y. Probate kits will lead to the Probate Registry returning the application with instructions to amend a number of aspects. This can lead to additional emotional stress at a time which is already stressful and difficult.
As with Wills, in our view, monies in an Estate are better spent on beneficiaries rather than expensive legal bills that may be necessary to finalise Probate applications if a law firm is needed to step in to assist after an application has already been lodged. Because Estates and Probate are highly specialised areas of the law, it can be very useful and more cost effective to have a law firm involved from the beginning.
Powers of Attorney
A Power of Attorney is a legal document that allows another person or persons to act on your behalf in financial matters. There are different Powers of Attorney for different scenarios, but they do not authorise someone to make decisions concerning your medical treatment or other aspects of your health and welfare. To address these aspects you will need to make an Advance Care Directive.
All powers conferred by you under a Power of Attorney end with your death, at which point a Will takes over.
Advance Care Directives
From 1 July 2014 Advance Care Directives replace:
- Medical Power of Attorney
- Anticipatory Direction
- Enduring Power of Guardianship
There is a set form required for an Advanced Care Directive. It does not need a lawyer to draft it, but it may be best to have a lawyer advise on it. It is intended to simplify and consolidate the previous system of three different documents.
Unfortunate as it is, from time to time there will be a dispute in relation to a Will after the Testator’s death. The issues raised by family members following a death can be numerous and complex, including being left out of a Will, undue influence over a Testator, and divisions of an Estate in the case of blended families, as well as many other issues.
Whatever the dispute regarding an Estate, we can assist you at every stage.