Wills & Estates Law
Careful planning now can provide peace of mind for you and your family. We can help you implement strategies to ensure your affairs are managed by someone you trust if you are incapacitated, and work with you to create a Will that provides clarity for your family, helps protect your assets, and directs how they should be distributed after you die.
If you have lost a loved one, we can guide you through the legal requirements to transfer assets and administer and finalise the estate.
Do you have an Effective Will?
A Will is a legal document directing how you would like your assets distributed after you die and nominating one or more executors to manage your estate and ensure your testamentary wishes are followed.
If you die without a Will, you die intestate. Your estate will be dealt with by a statutory formula providing for a specific order of asset distribution to your next of kin. While this formula is designed to reflect society’s expectations it may not consider your real wishes, nor the uniqueness of your family or circumstances.
Engaging an experienced lawyer to prepare your Will is a smart move. Not only will your lawyer ensure that your Will meets the prescribed formalities for it to be valid, but your personal, financial, family and other key considerations can be addressed. This might include the need to protect vulnerable beneficiaries and minimise potential disputes from arising after you die.
Dying without a Will also means that your next of kin will usually have to apply to the court for letters of administration before dealing with your assets, resulting in additional stress and costs for your grieving family.
What is a Testamentary Trust?
When planning your estate, you can implement strategies to help protect assets for future generations. If you have minor or vulnerable beneficiaries, a testamentary trust can help you look after them in the future. A testamentary trust is made under a Will and begins at the death of the testator. Trusts enable you to financially support someone without giving them direct control of the assets. They can also help protect your estate from third-party claims, ensuring that your assets are used to benefit those you love.
You might also set up a discretionary testamentary trust because you want your assets to be distributed among your family members in the most tax-effective way. These strategies should be discussed with your lawyer and accountant.
What is a Power of Attorney?
A power of attorney is a legal instrument appointing a trusted person (the attorney) to handle certain matters on behalf of somebody else (the principal).
There are different types of powers of attorney used to cover different circumstances and situations in Queensland, and it is important to understand the options available so you can choose what is right for you. You should consider what powers your attorney will need, such as the power to make medical or financial decisions (or both), and whether you want the power to be limited to specific events and/or times, or to be enduring (in which case the power will continue if you lose capacity).
You can only make a power of attorney if you have legal capacity, which means you need to understand the effect of the document you are signing and the consequences of appointing someone as your attorney.
Are you the Executor of a Will?
After a person dies, the executor appointed in their Will is responsible for a range of tasks including looking after the deceased’s assets and finalising their financial and legal affairs. The executor will need to consider the provisions in the Will to ensure the deceased’s wishes are followed. Executors are also required to follow the correct processes and succession laws to effectively carry out their role.
Before administering an estate, an executor may need a grant of probate from the Supreme Court. The grant of probate ‘proves’ the will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the Will. In the case of a person who dies intestate, a family member will usually need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised.
Sometimes, executors face complex issues, often outside their areas of expertise. For example, they may need to consider the order of payment of debts or deal with an estate dispute or family provision claim. Our experienced lawyers can help you navigate the process of estate administration and finalise the estate.
If you need assistance, contact [email protected] or call 0415 260 521.