WILLS & ESTATES
Overview
Wills and estate planning are pivotal to financial independence throughout life, and to protect assets and ensure the execution of financial intentions into the future.
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With a proper estate plan in place, you can determine matters such as control of your personal and financial affairs if you lose capacity and who should benefit from your estate upon your death. A proper estate plan will also take into account the financial implications of death including tax on superannuation and capital gains.
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There are legal issues that must be taken into account when you are considering your estate planning and financial plans and our expert Will and estate lawyers in Sydney are here to help. How you structure your Will, the appointment of trustees and Will executor, how your estate is distributed and the appointment of guardians for any children are all vital issues that should be addressed in your Will.
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KF Lawyers Australia provides a full range of services associated with the preparation of wills, estate planning and administration, and contentious estate matters.
Drafting a Will
Considering one’s death is unpleasant, but we all need to realise that we cannot live forever. We will end up passing on our legacy to loved ones within our family or others we nominate in our wills. If you do not have a will, your estate (that is your property) will be distributed intestate in accordance with the provisions of Chapter 4 of the Succession Act 2006 (NSW). If you want to have a say in how your property is to be distributed following your death, it is important you have a will.
At KF Lawyers, we have experience in drafting simple and complex wills. As we handle divorce applications for many clients, we also offer services to update their wills following the divorce order taking effect. Drafting a will requires careful attention to wording and knowledge of your financial affairs. It also requires you to make some personal decisions, such as appointing executors, trustees and guardians.
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Executors: an executor is the person who "executes" or carries out the terms of your Will. Among other things, they make sure your chosen beneficiaries actually get the assets you're passing on to them.
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Trustees: a trustee is the person who you nominate to handle assets that are held in a trust. They may be the same person who you appoint as your executor.
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Guardians: if you have children that still require parental care, Guardians are the people who will care for them.
While some opt for using the do-it-yourself will drafting kit sold at the local post office, these are unhelpful in most cases. You want to ensure that your estate is divided and dealt with as per your testamentary wishes, and you also want to make it easy for others to understand.
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If you need a will drafted, please contact KF Lawyers to arrange an appointment.
Family Provision Claims
If you are left out of someone’s will and feel that you should have been entitled to a piece of their estate, then you can make a “family provision claim” under Chapter 3 of the Succession Act 2006 (NSW). A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person. Such an application made by filing a summons together with an affidavit in the Supreme Court of New South Wales.
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Not everyone can make a family provision claim, and you should seek legal advice before making an application. You can make a family provision claim if you:
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are an 'eligible person', and
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have been left out of a will, or
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did not receive what you thought you were entitled to receive.
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There is a time limit in which to file a family provision claim. An application must be filed at the Court within 12 months of the date of death (where the deceased person died on or after 1 March 2009). The Applicant is not required to obtain a grant of Probate or a grant of Letters of Administration before making an application for family provision.
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An “eligible person” includes:
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the wife or husband of the deceased
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a person who was living in a de facto relationship with the deceased (including same sex couples)
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a child of the deceased (including an adopted child)
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a former wife or husband of the deceased
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a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
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a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death.
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If your application for family provision is successful, the Court will make an order to provide you with a share of the deceased’s estate.
Before such order can be made, the Court will consider a variety of factors, including:
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The relationship between the applicant and the deceased person
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Any obligations or responsibilities owed by the deceased person to the applicant
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The value and location of the deceased person's estate
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The financial circumstances of the applicant, including their current and future financial needs
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Whether the applicant is financially supported by another person
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Whether the applicant has any physical, intellectual or mental disabilities
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The applicant's age
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Any contribution made by the applicant to increase the value of the estate
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Whether the deceased person has already provided for the applicant during their lifetime or from the estate
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Whether the deceased person provided maintenance, support or assistance to the applicant
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Whether any other person is responsible to support the applicant
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The applicant's character
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Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
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Any other claims on the estate
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Any other matter the court may consider as relevant.
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Proceedings in the Supreme Court for family provision claims can be complex and it is important that you receive legal advice to carefully consider your options. If you are eligible to make a claim, it is recommended that you seek legal assistance to prepare your application, including the summons and supporting affidavit.
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If you are considering making a family provision claim, please contact KF Lawyers for an initial consultation.
Power of Attorney
If you are concerned about your declining mental health and capacity to make decisions, you may want to plan ahead and arrange a Power of Attorney and/or appoint someone to be your Enduring Guardian.
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What is a Power of Attorney?
A Power of Attorney enables you to appoint a person (or people) to be your “attorney”. Your attorney can manage your assets and financial affairs for you and can do anything on your behalf that you can lawfully do yourself, which could include paying bills from your bank accounts or selling your property. When arranging your Power of Attorney, you can specify what you want your attorney to do and what they cannot do. The appointment of an attorney is an important decision and one not to be made lightly, so it is best to obtain legal advice.
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There are two types of Power of Attorney: one is a General Power of Attorney and the other is an Enduring Power of Attorney.
An Enduring Power of Attorney and a General Power of Attorney can be tailored to set whatever limitations or conditions on your attorney that you choose. For example, the authority can be restricted to a certain period of time or the authority can restrict the tasks which the attorney can carry out on your behalf.
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A General Power of Attorney is an arrangement which will lapse on the earlier of the end date (if one is noted in the document) or if you lose mental capacity.
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An Enduring Power of Attorney is the most common type. This means that if the person making the Power of Attorney (“the principal”) was to become of unsound mind, the Power of Attorney is still effective and the attorney can continue to manage the principal’s assets for them.
In order for a Power of Attorney to be enduring a Certificate (which forms part of the document) must be signed by a prescribed person e.g. a lawyer, to the effect that the principal understood the nature and effect of the document.
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Your Power of Attorney will need to be registered with the LPI, if your attorney has to deal with property on your behalf e.g. sell your home.
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What is Enduring Guardianship?
An Appointment of Enduring Guardian document enables you to appoint a person (or people) as your “guardian”. It does not need to be registered and it is automatically revoked upon your death. The appointment of your guardian can be revoked at any time, but needs to be done in writing and given to your guardian. Your Guardian can make health and welfare decisions for you, which could include deciding where you live or consenting to medical treatment for you, but only if you were unable to make those decisions yourself.
If you are considering appointing a power of attorney or enduring guardian, please contact KF Lawyers for an initial consultation.