Wills & Estates
Planning your estate and preparing a will are important legal matters for all adults to consider. We can help with all aspects of your estate planning or with the administration of the estate of a loved one. If your family circumstances have changed or you have been involved in a family law settlement, our experienced lawyers can advise you about the steps you should take regarding your estate plan.
Preparing a Will
A will performs a number of different functions. It appoints somebody to manage your affairs after you die (your executor) and directs how your property should be distributed. For example, if you are married with children, your will may state that your spouse receives the entire estate unless they predecease you, in which case your children inherit in equal shares.
A will can also leave instructions for the executor to follow, such as a plan for your funeral, or your wishes for the care of your pets. If you are a parent, one of the most important functions of a will is to record your wishes for the care of your children and to make arrangements (such as a testamentary trust) for the financial support of dependents.
It is a good idea to have your will prepared by a legal professional to ensure it is valid and reflects exactly what you want. A lawyer can also provide advice on structuring your estate to help protect vulnerable beneficiaries and assets. A poorly drafted will can be deemed invalid by a court or have unintended consequences.
What happens if I die without a Will?
If you die without a will you die intestate. Your assets will be distributed according to a statutory formula which provides for specific family members to receive a set percentage of your estate. The statutory formula for the distribution of an intestate estate may not necessarily reflect your unique circumstances and may result in a very different outcome to what you may have wished for.
Dying intestate generally also means that somebody (usually your next of kin) will need to apply to the Supreme Court for letters of administration before distributing your assets. This can cause added stress and costs for your grieving family.
Family Law and Wills
It is important to review and update your will when your circumstances change such as if you have recently separated or divorced or given birth to a child. In such cases you may want to revise who is included in your will, or, if there has been a property settlement, what assets remain in your possession to dispose of. Receiving legal advice about your will at the time of separation or divorce provides certainty and security for your loved ones after you are gone.
Family provision claims
A family provision order allows for certain people to receive a distribution from a deceased estate despite not being named in the will. Some individuals who may be eligible to apply for a family provision order include a spouse, former spouse, child or grandchild, or a person living with the deceased as a de facto partner.
If you make a family provision claim the court will consider a number of factors to determine whether to make an order in your favour, including your relationship with the deceased and whether the deceased had any obligation or responsibility to provide a distribution for your maintenance, education or advancement in life.
Although estate disputes can end up in the Supreme Court, it is almost never recommended to allow a dispute to get to this point. A court hearing is time consuming, stressful, and expensive. Most disputes over a will are resolved well before a court hearing, usually when the executor of the estate (or their solicitor) sits down with the claimant’s solicitor. Alternatively, the parties might reach agreement through mediation, saving the estate the cost of a legal battle through the courts.
Power of Attorney
A Power of Attorney is a legal document that gives a person the legal authority to act for you when you are incapacitated to manage your assets and make financial and legal decisions on your behalf. A power of attorney allows the person to pay bills, collect rent, and buy and sell real estate on your behalf.
It is important to carefully consider who you appoint as your attorney as it is a position of great responsibility and trust. Your attorney can be a family member, friend, solicitor, NSW Trustee & Guardian or other trustee organisation.
If you do not have a Power of Attorney in place, a court or tribunal may appoint someone to manage your finances if you are unable to do so for yourself.
Enduring Guardian
An Enduring Guardian is the person you legally appoint to make decisions about your health and lifestyle in the event you cannot make these decisions for yourself. You may not be able to make decisions due to a temporary or permanent loss of decision-making ability from illness, injury or disability. Your Enduring Guardian cannot make financial decisions on your behalf, such as paying bills. To make financial decisions on your behalf, you need to appoint someone under a Power of Attorney.
Your Enduring Guardian makes decisions such as:
- where you live and the services you might receive;
- healthcare, medical and dental treatment you receive;
- end of life care.
Your Enduring Guardian can be a spouse, family member or friend. They should be someone you trust.
If you do not have an Enduring Guardian and decisions need to be made on your behalf, a court or tribunal may appoint someone to make decisions for you.
Wagga Family Lawyers can assist you to prepare your Will or Power of Attorney or to appoint an Enduring Guardian.
If you need any assistance, contact one of our lawyers at [email protected] or call 1300 704 064 for a no-obligation discussion and expert legal advice.