Wills and Estates
Some of us don’t want to think about what will happen when we die, and some of us can’t stop thinking about it.
Wills
If you are reading this, it is likely that you have either just decided you cannot put off making a Will any longer, or something has happened to prompt you to create a new Will or amend an existing one.
The importance of a Will is it represents a legal confirmation of your wishes and what you want to happen to your Estate once you are gone.
If you were to die suddenly without a Will there could be additional delay, uncertainty and expense for your loved ones in dealing with your Estate.
Wills need to be drafted so that they are legally binding. While there are “Do-It-Yourself” options available in the market, it is easy for mistakes to be made in these which invalidate the Will – there are a long list of previous court cases that can testify to this fact.
While some can keep their Wills simple, for others the complexity of their Estate and/or the complexity of their family means a more carefully planned solution may be required.
First you need to choose an Executor, a person or people in your life who will ensure your wishes are carried out. Then you need to carefully itemise all the items that comprise your ‘Estate’ and think about how you would like this to be distributed. Then the Wills and Estate team at GP Legal can take and advise you on your instructions and explain any potential outcomes for you to consider.
GP Legal can hold your original Will for you in a secure fireproof register if desired, so you can rest assured you know where your Will is and that your final wishes have legal protection.
Powers of Enduring Attorney & Guardianship
A loss of capacity, whether temporary or permanent up till death, can be easier for your family and friends to manage if you have already prepared legal documents granting power over the financial and health and lifestyle decisions that have to be made. These are not just for your later years but also often something that comes to mind with impending overseas trips or operations.
An Enduring Power of Attorney is a legal document appointing a person, or persons of your choice to manage your financial and legal affairs in the event you lose capacity. With this your Attorney will be able to assist you with banking and other dealings with assets, such as selling property.
The appointment of an Enduring Guardian gives another person, or persons, the authority to make lifestyle and medical decisions on your behalf.
In both of these documents you can stipulate at what point these Powers are to become effective and whether there are any limitations on the decisions these appointees can make.
If you are a family member or friend of a person who requires help with their affairs but does not have one or either of these documents executed at the time they lost capacity, please contact the office so we can advise you as to how you can resolve this issue.
Estate Planning
An Estate Plan is the best way to prepare for the day you will be leaving your business or rural property, whether it be for your retirement, for health reasons or just time for a change.
Estate planning includes the assessment of assets and the various means how they can be protected and dealt with so as to minimise tax, in consultation with your accountant if required.
GP Legal can advise regarding the possibility of claims against the estate will strategies to prepare for family members or other third parties who may dispute your Estate plan.
Your Estate Plan should be re-evaluated when your family or professional circumstances change or when there is a significant shift to superannuation, taxation or insurance legislation. A truly successful Plan should take into account not only provisions for your retirement income but also the plans, aptitudes and existing assets of the younger generation.
Advance Care Directives
A person over 18 with decision-making capacity can formalise any firm ideas they have about how they want to live the rest of their life in an Advanced Care Directive, sometimes also known as a ‘living Will’.
GP Legal can discuss your needs with you and prepare a valid directive which health professionals and family members will have follow which can include one or more of the following:
- Information around any existing health conditions;
- The quality of life you are happy with;
- The treatments and care you would like or would refuse if you have a life-threatening illness or injury;
- The person who you would like to be your substitute decision maker (if you have not already appointed a Power of an Enduring Guardianship);
- Details of what is important to you, such as your religious/spiritual/cultural beliefs, values, life goals and preferred outcomes.
Probate & Letters of Administration
Once a person dies, a legal personal representative must deal with the assets of the deceased. Where the person has made a Will, the Executor or Executors nominated will fulfill that role.
Depending on the type, size, location and value of the assets in the Estate, it may be necessary to obtain a Grant of Probate before you are able to deal with the assets.
Where the deceased has assets in NSW, Probate will be granted by the Supreme Court of New South Wales once they are satisfied that a Will for the deceased has been validly made.
If you have been made an Executor in a Will and the person has now died, you are responsible for making the application to the Supreme Court for this Grant, then gathering the assets of the Estate, ensuring the funeral costs and other debts of the Estate are paid and the remaining assets are distributed to the named beneficiaries.
In a number of circumstances, such as where:
- there is no Will to be found;
- no Executor is appointed in the Will;
- an Executor has predeceased the willmaker;
- the Executor is unwilling or unable to act;
the Supreme Court will appoint an Administrator to deal with the estate.
There are specific requirements for these applications and the GP Legal Estates team can professionally represent Executors and Administrators to ensure these requirements are met, as well as efficiently handling the time-consuming tasks of conducting thorough searches for assets, liaising with assetholders and keeping beneficiaries informed while the Estate is being administered.
Family Provision Claims
Those already named as a beneficiary can still contest the Will for a greater entitlement.
NSW residents can contest a Will no later than 12 months from the date of death.
There are a number of grounds under which a Will may be challenged: the Will may be fraudulent or not valid, or the Will maker may not have had sufficient capacity at the time the Will was drafted and signed to understand what they were creating, or the Willmaker was subject to undue influence from another person, so that his true wishes are not reflected in the Will.
If you believe you have been unfairly provided for or left out entirely of a Will, speak to our Wills and Estate team at GP Legal, who can evaluate your situation and any evidence you have to determine whether you could qualify as an ‘eligible person’ who can contest the Will.
The Family Provision claim then has to demonstrate that the deceased has a moral obligation to provide
The lawyers at GP Legal can commence negotiation with the Estate and seek to avoid damage to relationships and finances by representing your rights fairly but without antagonising the other parties in the matter.
Financial Management & Guardianship Orders
Where a loved one has lost capacity and has either:
a) not executed an Enduring Power of Attorney and/or an Enduring Guardianship and they are unable to make decisions or are making decisions that will negatively impact on their health, lifestyle or finances; or
b) has executed an Enduring Power of Attorney and/or an Enduring Guardianship but the person or persons appointed are not fulfilling their responsibilities as Attorney and/or Guardian and/or may be misusing their power;
GP Legal can advise and if appropriate assist with application to the Guardianship Division of the NSW Civil & Administrative Tribunal for a Financial Management Order in relation to their financial matters, or a Guardianship in relation to their health and lifestyle management.