Wills & Probates
Wills and estate law is an area of law that allows you to plan for the future and look after your loved ones. You can do this by making a valid will, putting in place trusts to help protect assets and beneficiaries, and appointing somebody you trust to manage your affairs if you are incapacitated. An effective estate planning involves careful consideration of your unique circumstances and should be tailored accordingly.
If you have recently lost a loved one, you will have the difficult task of finalising their affairs and may need to administer their estate. We can help you through this difficult and often, complex, process.
Do you need a new will?
It is vital that you make and regularly update your will. If you die without a will, you have no control over how your property is distributed. Your estate may end up benefiting someone that you dislike and miss those closest to you entirely.
It is particularly important for you to make a will if you are a parent of a young child. In that case, you can leave instructions in your will about your wishes for who you want to look after your children if you die while they are still young. You may also wish to put in place special arrangements for their financial support, such as through a testamentary trust.
Your will may also provide an opportunity for you to leave specific instructions for your funeral and the care of your pets.
Do you need a power of attorney?
Along with a will, most adults would benefit from having in place a power of attorney (POA). A POA lets you nominate someone you trust, called the “attorney”, to make financial decisions if you are temporarily or permanently unable to do so.
A POA gives the attorney considerable financial power and control. You should only choose an attorney who you know will act in your best interests, and who is willing to take on the responsibility if the time comes.
Do you need an enduring guardian?
If you appoint someone to act as your attorney, they are restricted to making decisions about your finances. If you want someone to make decisions about your health and lifestyle when you are unable to do so, you need to appoint an enduring guardian. Of course, you may choose to appoint the same person to both roles.
You get to decide what type of decisions your enduring guardian can make on your behalf. For instance, you may want them to decide where you live, and what medical treatment you receive.
You can alter the appointment of an enduring guardian at any time while you still have capacity.
Are you an executor who needs help?
If you have been appointed as the executor for a deceased estate, you may be feeling fairly overwhelmed. While some people do undertake all of the duties of an executor by themselves, most people find that they need the assistance of a solicitor, particularly if they need to apply to the court for probate.
Applying for probate is the process of asking the court to confirm the validity of a will and empower the executor to carry out the deceased’s wishes. Usually, banks and other organisations will not release large assets for distribution to beneficiaries unless the executor has obtained probate.
Sometimes it is not necessary to apply for probate, especially if the only significant asset of the estate is a property that is jointly owned with another person. In that case, the surviving owner automatically takes full ownership of the property, and there is no need for the executor to seek probate.
Do you have a claim against a deceased estate or wish to dispute a will?
Most people think they can leave their property in any way they like in their will. However, the law in NSW says that you must leave your estate as a reasonable person would in the same circumstances. In most cases, a court would find that a reasonable parent would not leave their adult child out of their will, especially if the child is suffering financial difficulties and has previously been reliant on their parent for support.
If you have been left out of a will, or receive less from a will than you think is reasonable, you can make a claim against the estate provided you are an eligible person. Such claims are usually resolved through negotiation, rather than through a court case. A solicitor can negotiate directly with the executor of the estate to reach an amicable resolution.
If you are the executor of a will that is being contested, you may face an uphill battle to defend the terms of the deceased’s will. However, there are some circumstances when even a child can be “disinherited”. An experienced estate solicitor can help you to decide if you should compromise with the claimant or push back against the claim.
If you need assistance, contact one of our lawyers at [email protected] or call 02 4625 3755 for expert legal advice.