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

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 organise your burial, pay all your debts and liabilities and distribute your estate to your nominated beneficiaries.

Your Will covers all your assets except for your superannuation fund. You will need to provide a binding death nomination to your super fund and update this regularly or alternatively provide a clause in your Will for your superannuation funds to be given to your personal representative of your Will and distributed according to your Will.

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. The Court would certify that the Will is valid, and authorise the executor/executrix to pay your debts and distribute your 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 “intestate”. In such case, a beneficiary, generally your spouse, would apply to the Court for Letters of Administration i.e. to be nominated as Administrator of your Will.

The Succession Act 2006 (NSW) sets out the order in which eligible relatives will inherit the estate of the deceased – known as intestacy rules. These rules do not allow for any flexibility as to how your assets are to be distributed.

Where there are no children, then your spouse would get your whole estate. However, where there are children from your marriage or previous relationships, then your assets would be distributed differently and your spouse would only get a part of your assets. Where there is no spouse or children, then your parents inherit, and where no parents then your siblings etc.

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 a person that you trust and is happy to accept the responsibility to make decisions 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, decide whether you need to have nursing home accommodation, 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 well or 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. You can limit these powers to apply when a doctor certifies that you are no longer able to manage your health decisions and financial decisions. These powers can be revoked and changed by you.

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