Wills & Estates
We can all take steps to simplify the management of our financial affairs, predetermine the type of health care we are comfortable with, and ensure our hard-earned assets are structured to our greatest advantage as we age. We help individuals, families and executors with all aspects of estate planning and estate administration.
Preparing 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). A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.
A testamentary trust is a more complex Will that creates a trust or trusts after the testator dies. The trust assists in safeguarding assets from third-party creditors, protects at-risk beneficiaries and provides potential tax advantages.
Your Will is your voice after you die and anybody over 18 years of age with legal capacity can and should make a Will. A well-drafted Will can help to ensure that:
- your executors and loved ones know how you would like your affairs managed
- you are providing for the right people when you die
- your estate can be structured to protect beneficiaries and maximise value
- disagreements are avoided or minimised
- the potential for a claim against your estate is minimised
Reviewing your Will when your circumstances change
A change in your personal or financial circumstances means you should consider updating your Will as it may no longer reflect your wishes. This is particularly important if you are entering a new relationship or have recently separated or divorced. We can explain the effect of marriage, separation, or divorce on an existing Will so you can make a new one to reflect your changed circumstances.
Other significant events like having a child, buying or selling property or a business, a change in your health, or the death of a beneficiary or executor may trigger the need to review your Will.
Deceased estates – executors and administrators
After a person dies, someone needs to look after their property and affairs and administer their estate. An executor is the person appointed under a Will to do this. An administrator has a similar role however is appointed by the court through letters of administration when a person dies intestate (without a Will), or an appointed executor is unable to act in that capacity.
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 claim is made against the estate. They will often 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, or the potential of a family provision claim. We can help you through the legal process, providing advice and guidance to ensure the estate is administered as smoothly and effectively as possible.
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. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.
A grant of letters of administration is required when a person dies intestate. On application, the court will appoint an administrator, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
How can we help you?
Taking time now to plan your estate can save your family considerable heartache and costs when the unforeseen or inevitable happens. Our estate lawyers can help you to:
- prepare a valid Will that provides certainty for your family when you die
- guide you in choosing your executors, trustees, attorneys, etc.
- set up family and testamentary trusts to help safeguard assets, maximise your wealth and protect minors and vulnerable beneficiaries
- recommend and prepare documents, for example, powers of attorney, to help you manage your affairs as you age and to address any future incapacity
- carry out your duties as executor or administrator of an estate
- apply for a grant of probate or letters of administration
- collect assets, transfer property and distribute an estate to the beneficiaries
- collect information and coordinate estate tax returns
- minimise the possibility that your Will is contested and subject to litigation
- help make or defend a family provision claim
If you need assistance, contact one of our lawyers at [email protected] or call (07) 3372 2232 for a no-obligation discussion and for expert legal advice.