Wills, Probate and Letters of Administration, Enduring Guardianship and Powers of Attorney

Our Services

Our office can prepare for you:

  • Wills
  • Probate
  • Letters of Administration
  • Enduring guardianship
  • Enduring power of attorney

 

1. Why have a Will?

Wills should be done as a matter of course whenever someone acquires assets, property, money, shares, etc.

With a Will you can determine exactly how you want your estate to be distributed, provide securities for children by nominating a guardian for your infant children, and also create a discretionary trust so that your estate can be managed while your children are young. You can amend your Will at any time.

A Will generally has several components:

  • The details of the person making the Will.
  • The appointment of executor/executrix to administer the estate.
  • The appointment of a guardian to care for infant children.
  • The appointment of a Trustee to manage the estate if the children are aged under 18 years.
  • Instructions to the Trustee as to the management of the estate where the Will provides for a Trust (discretionary trust) for the estate to be distributed in part or in full to the children of the deceased under the age of 18 years.

The role of the executor/executrix is to pay all your debts and liabilities and distribute your estate to your nominated beneficiaries.

2. When would an executor/executrix apply for Probate?

Where the assets are a sizeable amount, or where there is property involved, the executor/executrix would go to Court to apply for Probate whereby the Court would confirm the intention of the Will and confirm the executor/executrix as the correct persons to pay the debts and distribute the estate. The Court document called Probate would be then used by the executor/executrix to transfer the property and distribute the estate according to the terms of the Will.

3. What if there is no Will?

Your estate would be considered to be “interstate” where there is no Will or an inadequate Will with no executor/executrix nominated, or even where the executor/executrix is unable to act in relation to the Will. In such case, a beneficiary, generally the spouse, who would be the major beneficiary, would go to Court to seek authority to distribute the estate according to the statutory formula provided in the Succession Amendment (Intestacy) Act 2009 that came into effect on 1 March 2010.

Note that where the property is held as joint tenants, the property would automatically become the property of the surviving spouse. However, where the deceased held assets in their sole name or where assets were held as tenants in common, the surviving spouse would need to seek Letters of Administration to distribute the estate.

In a business scenario, the executor/executrix would seek to sell the deceased’s share of the business and also transfer the lease to the surviving partners of the business. For more detail on the legislative changes for interstate estate, see the Law Society paper entitled:

“The Succession Amendments (Intestacy) – Law Society of NSW” www.lawsociety.com.au/idc/grtoups/public/documents/…/065487.pdf

4. When to appoint an enduring power of attorney and enduring guardian

If you are getting older or having health problems, two other matters that you should consider are:

  • appointing an enduring guardian
  • appointing an enduring power of attorney.

An enduring guardian is essentially your adult child or close relative that you trust and is happy to accept the responsibility to make decision about your health care, welfare and accommodation issues. This is relevant where you have health issues or you have deceasing memory. The enduring guardian can consult with doctors to decide the health care you require and can help organise your life to be more comfortable when you are not well.

An enduring power of attorney is about the management of your financial assets. The enduring power of attorney allows the attorney to make decisions about your assets and money when you are in poor health and not well. You can give the attorney unlimited powers to act on your behalf in your financial matters or you can limit the power to specific matters only.

In both cases, you decide who your enduring guardian and power of attorney are to be. These powers can be revoked and changed by you.

If you are getting older, you may wish to organise all three documents together: Will, enduring guardianship and enduring power of attorney.

We would be most happy to take instructions from you and prepare the required legal documents in your case.