Estate Planning
Estate planning is making sure you have a plan for what will happen to, not only your “estate” when you die but also how you will be cared for medically and financially if you are unable to make your own decisions in the future.
The key documents in establishing your estate plan include your Will, Enduring Power of Attorney and Advance Care Directives.
What is Probate?
We have undertaken numerous applications for people whose separated spouse is living in Australia.
A grant of Probate ‘proves’ the last Will of the deceased and authorises the executor to deal with the estate assets. The requirement to obtain probate usually depends on the size of the estate, the nature of estate assets, and the particular circumstances of each case.
To obtain a grant of Probate, the executor named in the Will applies to the Supreme Court by filing the relevant application and supporting documents such as a statement of assets and liabilities, the Will and Death Certificate. The executor must provide an undertaking to deal with the estate as required by law. BSG Lawyers will prepare your Probate application and will assist the executor with all aspects and possible anomalies and/or requisitions that may be raised by the Court.
Once Probate is granted, the estate assets vest in the executor and he or she may deal with the assets and commence administering the estate in accordance with the Will. This can also be complex and BSG Lawyers can assist in this process as well.
Intestacy
For those who die without a Will they die “intestate”. When a person dies without a Will, it can be confusing for those left behind to know what to do with the deceased estate:
- Who pays for the funeral?;
- How do we go about paying creditors?
- Who is the person entitled to administer the estate?
- Who can make an application to the Supreme Court for Letters of Administration?
- How do we call in the assets?
- Who is entitled to benefit?
In most cases, the estate of a person who died without making a will is divided between their heirs, which can be their surviving spouse, uncle, aunt, parents, nieces, nephews, and distant relatives. If, however, no relatives come forward to claim their share in the property, the entire estate goes to the state.
BSG Lawyers are able to assist and advise you in respect of all matters concerning the administration of an intestate estate, and obtaining “Letters of Administration”, and, the calling in and distribution of the “intestate estate”. BSG Lawyers have also undertaken Estate work for beneficiaries/executors or administrators who are based overseas.
Family provision claims – challenging an estate
Family provision laws have evolved to reflect ‘community standards’ by ensuring those who should morally be provided for receive an adequate inheritance from a family member. Only eligible persons may make a family provision claim seeking a share or greater share from an estate. Typically, an eligible person includes spouses or former spouses or partners, a deceased’s child or grandchild (of any age) and, in some circumstances, persons who were financially dependent on the deceased.
If someone is single with no children, the state will decide which relatives will inherit. If no relatives can be found, the entire estate goes to the state. Usually, only spouses, registered domestic partners, and blood relatives can inherit under intestate laws.
Strict timeframes apply for making a family provision claim and the applicant must be able to show that the deceased failed to make adequate provision for his or her proper maintenance, education and advancement in life.
When considering such claims, a Court will look at a range of factors including the size of the estate, the competing interests and needs of other beneficiaries under the Will or other eligible claimants and the nature of the relationship between the applicant and deceased.
There are various legal approaches that may be undertaken to protect a person’s entitlement to an estate before distribution occurs.
BSG Lawyers will advise you on the strength (and weakness) of such a claim.
When is a grant of representation required?
If you own real estate (other than as a “joint tenant” with your spouse or other person) or have other significant assets in your own name such as shares or similar investments and money in financial institutions. However, in small estates it may be possible to have the assets transferred without a grant if there is no real estate involved.
Power of Attorney – Enduring Power of Attorney
A Power of Attorney is useful in situations where you still have capacity but are otherwise unable to act for yourself, for example if you are overseas. It gives another person, your Attorney or ‘donee’, the authority to deal with your affairs such as purchasing property or operating your bank account. Nominating an Attorney does not mean you lose control of your affairs, and you can always limit their authority. If you wish your Enduring Power of Attorney to continue despite your loss of capacity, you need an Enduring Power of Attorney.
Advance Care Directive
An Advance Care Directive allows you to appoint another person to make decisions about your health care and welfare in the event that you become unable to make those decisions in the future. It allows you to set out your wishes for how and where you will live, and lets you nominate the types of medical treatments you may wish to have. If something does go wrong an Advance Care Directive will ensure you are being cared for in accordance with your own wishes.
Testamentary Trust
Another consideration is whether you need a testamentary trust which is set up in your Will to protect assets. It is administered by a trustee who is usually appointed in your Will.
Some reasons why you would create a testamentary trust include:
- The beneficiaries are minors;
- The beneficiaries have diminished mental capacity;
- You do not trust the beneficiaries or their inheritance wisely;
- You do not want family assets split as part of a divorce settlement; or
- You do not want family assets to become part of the bankruptcy proceedings.
In recent years there has been an uptake in home-made and online Wills. On the face of it they seem an inexpensive solution, but it is very much the case of buyer beware. Low-cost Will options are often found to be low-quality and more expensive in the long run. These types of Wills are also found to be invalid for not meeting the requirements of the Wills Act and the Probate Rules. Once again, this means your Will is set aside and your assets distributed according to the rules of Intestacy – which may conflict with your wishes.
If you are concerned about something regarding an Estate of your parent, seek legal advice
Get in touch to book your consultation with a lawyer