Estate planning and will preparation are matters that people often leave until it is too late. A high percentage of Australians die without a will (“Intestate”) and many others leave wills that are not up to date and reflective of their current wishes. This is unsurprising considering that none of us really like to think about our own mortality.
The fact that we spend most of our lives working to create assets should be reason enough to prepare a will. Perhaps more significantly, a will can ensure your loved ones are provided for after your death.
Estate planning is a far more complex area of law than it might first appear. There are many legal issues as well as unforeseen practical issues, which must be taken into account when you are planning a will. The experts at AC Lawyers can assist you in the drafting and proper execution of the necessary documents so the people you leave behind are taken care of.
Without a will, your assets will be distributed according to a formula set out by intestacy law. Having a well-drafted will ultimately allows for a cheaper and quicker granting of probate. It also reduces the possibility of people outside your will making a claim against your estate. Some things to consider when preparing a will are:
- the executor – the person to whom you grant authority to collect and deal with your assets;
- appointment of guardians for any children
- beneficiaries – those who will receive part of your estate;
- gifts – property, belongings, cash, etc.
- the creation of trusts;
Contesting a Will
There are many grounds upon which a will may be contested, including:
- duress or undue influence on the testator which effects their true intentions;
- lack of testamentary capacity at the time the will was made;
- leaving out someone who had a reasonable expectation of receiving a benefit.
Family Succession Act Claim
If you feel as though you’ve been overlooked or disadvantaged by the execution of a will, you may have a right to make a claim under the Succession Act.
The Act defines categories of “eligible persons” and provides the court with the power to make orders that provisions be made available to the claimant from the testator’s estate.
It is important that you act quickly as you only have 12 months from the date of death of the testamentary maker to lodge a claim.
It is of great importance that the testator understands the nature of the document they are signing to manage the nature and number of challenges being made. Our experienced team makes sure to explain every detail of the will and the effect it will have.
Power of Attorney and Enduring Guardianship
A Power of Attorney is a legal document that allows one person to grant another person the power to make financial, legal and medical decisions on their behalf. Powers can also be limited depending on your wishes. A Power may be used for certain time periods or for a specific purpose. Powers are also utilised in anticipation of you being unable to make decisions or manage your financial affairs.
An Enduring Power of Attorney provides your nominee the power to make decisions in accordance with your wishes, regardless of any change to your mental capacity. However, legislation requires your attorney to sign the instrument before it becomes operational.
Power of Attorney cannot be granted if the donor does not understand the nature of the document.
This means that where it is foreseeable that a person may need to appoint a power of attorney, it should be organised in a timely fashion.
An Enduring Guardianship allows you to appoint another person to make decisions regarding your personal well-being. This can include living arrangements, personal services and leisure activities, and refusing or consenting to medical/dental treatment.
As with a Power of Attorney, the appointment of an Enduring Guardians can only be made when you have the mental capacity to understand the document.
For an Enduring Guardian to be appointed, it is necessary that he or she sign the document and have it witnessed by a lawyer. The document will include the number and type of functions the nominated guardian may carry out on your behalf. You can also specify different functions to be carried out by different guardians.
The NSW Civil and Administrative Tribunal (NCAT) has the power to appoint a guardian for those with disabilities. If you become incapacitated the Tribunal can appoint a trustee to manage your affairs.
Estate Planning is often left until the last minute. Ideally, it is something that should be planned well before it is necessary.
The staff at AC Lawyers have significant experience with Estate Planning when something goes wrong. Having a plan can save your loved ones a lot of time and money in the unfortunate case that you are rendered incapacitated or become unable to handle your financial or personal affairs.
AC Lawyers can help guide you in all aspects of Estate Planning so that your legacy is protected.