Wills & Estates
Effective estate planning requires several steps. Even those with simple family structures and modest assets should consider a range of matters to determine how their assets are distributed after death, and how their legal, financial and health affairs are managed if they are incapacitated.
We can assist with all facets of estate planning, by preparing powers of attorney or enduring powers of attorney to ensure your affairs are managed by somebody you trust if you are unable to do so yourself, and tailoring your Will to ensure your assets are protected and distributed as you wish when you die.
Preparing a Will
Regardless of the size of your asset pool it is important to have a valid 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 executors). A Will can be simple or complex and can also appoint guardians for minor children and provide directions for funeral arrangements.
When preparing a Will, you should take into account your family structure and your personal and financial circumstances. The risk of a family provision claim being made after you die should also be considered.
We recommend reviewing your Will regularly, particularly when your personal and financial circumstances change. Important life events such as marriage, divorce and the birth of a child; or financial changes like receiving an inheritance or buying a business or property are relevant milestones that may necessitate an update of your Will and estate plan.
Testamentary Trusts
When planning your estate, there are steps you can take to help protect assets for future generations and ensure that your estate is left only to those you intend to benefit. A testamentary trust is a discretionary trust contained in a Will that comes into effect when the will maker dies. The effect of a trust is the separation of the beneficial from the legal ownership of property, through the appointment of a trustee. The trustee manages the trust and holds the assets on behalf of the beneficiaries. Holding assets in trust can protect them from claims by third party creditors in the event of bankruptcy, insolvency, court, or family law proceedings.
Executors & Probate
Are you an Executor?
After a person dies, someone needs to look after their assets and administer the estate. An executor is the person appointed under a Will to do this. An administrator has the same role but 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.
Executors and administrators have 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. Executors 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, and the consideration of a family provision claim.
If you have been chosen by a family member or friend to be their executor, it is important to obtain legal advice and guidance when undertaking this important role. Being an executor can be overwhelming, particularly when you are grieving, but we can help you through this process with guidance and advice, the cost of which is generally covered by the estate.
Executor Duties
An executor’s duties may include responsibilities such as:
- Organising the funeral and notices
- Locating the Will and obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Applying for Probate
- Paying insurance policies, debts, and taxes
- Collecting funds owned by the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
What is Probate?
An executor may need to apply for a grant of Probate through the Court before administering an estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
Probate is recognition of the Will’s validity and permission from the Supreme Court for the executors to carry out their duties in relation to the estate, as directed by the Will.
What if there is no Will?
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.
Can I choose not to be the Executor?
Just because you have been named an executor does not mean you have to accept the responsibility. If there is another executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.
When you work hard to acquire and build assets and personal wealth, it makes sense to invest in sound advice to ensure they are protected. We have expertise in this important area of law and have helped numerous clients with their estate planning needs, from the simple to the more complex.
If you need any assistance, contact one of our lawyers at [email protected] or call 07 4992 3600 for expert advice.