An effective estate plan is more than preparing a valid Will. It involves giving careful consideration to many aspects of your life, your family relationships, pasts relationships, financial and personal circumstances to ensure:
- you have someone you trust looking after your health and finances should you be unable to do so yourself;
- your assets are managed and distributed to your loved ones and others after your death in accordance with your wishes;
- you have, where relevant, thought through the implications of family provision legislation and its possible impact on your estate; and
- you have a plan in place for the distribution of your Superannuation after your death.
While for many this is a simple process, for others it can be quite complex.
Making a Valid Will
A valid Will determines who should benefit from your estate when you die and who will be responsible for administering it. The person responsible for its administration is called an Executor. A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.
What are Testamentary Trusts
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 of your beneficiaries, protects at-risk beneficiaries and provides potential tax advantages.
Power of Attorney
A Power of Attorney appoints a trusted family member or friend to look after your legal and financial affairs should you be unable to do so yourself. The Power of Attorney can specify the extent of powers an attorney is authorised to exercise. It can operate for a limited time, such as while you are travelling overseas or for a one-off transaction. More commonly, a Power of Attorney is prepared so that it operates indefinitely and continues to operate even if you lose mental capacity. This is known as an Enduring Power of Attorney.
An Enduring Guardian appoints a person you trust to make lifestyle, health and medical decisions on your behalf should you be unable to make those decisions yourself. A guardian acts as a substitute decision-maker and may consent to medical and dental treatment and living arrangements. The appointment also authorises health care professionals to share your personal information with your guardian.
Application for a Grant of Probate
Probate is a grant made by a Court that proves the Will of a deceased person, vests title to estate assets in the executor and authorises the executor to deal with the estate assets and liabilities. The executor is responsible to pay estate liabilities, distribute gifts to the beneficiaries, sell and transfer property, arrange estate returns and generally finalise the estate in accordance with the Will.
Whether it is necessary to obtain a grant of Probate will depend on the assets held by the estate. Applying for a grant of probate may not be necessary for estates of a small value or where property was held jointly with a sole beneficiary. In such cases, the estate assets may be distributed to the beneficiaries after the provision of documents required by the relevant authority or institution.
Dying without a Will – dying intestate
- family members or friends missing out from an inheritance;
- a disproportionate distribution of assets between family members or leaving out more needy beneficiaries;
- a distribution to a family member with whom the deceased shared no significant or meaningful relationship.
An application for Letters of Administration is made by an interested person when a person dies intestate or the executors named in a valid Will are no longer alive or are unable to fulfil the role.
A grant of Letters of Administration will appoint the applicant as administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
Administering a deceased estate
Dealing with a deceased estate can be distressing and often involves complex issues at a time of grief and loss. Executors and administrators often need to liaise with a range of organisations and beneficiaries to ensure the terms of the Will are upheld.
Family Provision claims
The law allows certain people who are considered to be “eligible persons” to make an application to the Supreme Court for a share or a larger share of a person’s estate. Such an application is commonly referred to as a family provision claim. The Court will consider a range of legislated factors when deciding whether to provide for an eligible person from an estate.
If you need any assistance with your estate planning, with the administration of an estate or a family provision claim contact one of our lawyers at [email protected] or call 02 9527 4555 for a no-obligation discussion and for expert legal advice.