Planning for your family’s future after you are gone is an important legal task. If you take the time now to make an effective legally-binding Will, you can save your family not only stress, but unnecessary costs in what will undoubtedly be a difficult time for them.
We can help:
- advise you regarding estate and probate laws
- set up family and testamentary trusts
- advise you regarding your choice of executors and guardians
- minimise the chance that your Will is contested and subject to litigation
- safely store your Will and other important legal documents
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.
Why use a lawyer to help you prepare a Will?
A number of legal requirements must be met when a Will is prepared to ensure that it is valid. When a Will does not meet specific legal requirements, it may be invalid and subject to a contest after you die? To help ensure that your estate is distributed according to your wishes, it is important to have your Will prepared by a lawyer.
Involving a lawyer to prepare your Will can also help structure and maximise your estate to achieve its full potential. Our lawyers will consider your individual circumstances and important issues such as taxation and superannuation. We will also consider your family circumstances and take steps, if necessary, to minimise the potential for disputes to arise after you die.
You should review your Will regularly to ensure it is up to date and particularly when major life events occur, such as:
- the birth of a child
- separation or divorce
- commencing a new domestic relationship
- the passing of a beneficiary or executor named in your Will
- selling or purchasing major assets including real estate
- starting or investing in a business venture
What is a grant of Probate?
When a deceased person has a Will, you may need to apply for a grant of probate before the estate can be distributed to the beneficiaries. Probate is a grant made by a court that proves the Will of a deceased person and authorises the executor to deal with the estate. The executor is responsible to pay estate liabilities, distribute gifts, sell and transfer property, arrange estate returns and generally finalise the estate in accordance with the Will.
Applying for probate requires the preparation of affidavits, advertising the intention to apply for probate, and filing the application with the Supreme Court. A grant of probate may not be required to distribute an estate and your lawyer can advise you whether probate is necessary or recommended in your circumstances.
What happens when somebody dies without a Will?
Dying without a Will is referred to as dying intestate. In such cases the deceased person’s estate is distributed in accordance with a statutory formula. The rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin designed to reflect society’s expectations as to who should benefit from the estate. However, they may not consider the real wishes of the deceased nor his or her unique circumstances. This can result in undesired consequences such as:
- 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
Letters of Administration
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.
Effective estate planning is essential to help protect our assets and family. Dealing with a deceased estate can be distressing and often involves complex issues at a time of grief and loss. Our experienced and compassionate team can help with all aspects of estate planning, probate, and estate administration.