Wills & Estate Planning

When a loved one dies and appoints you as the Executor of their Estate, you may have to apply to the Supreme Court of NSW for a Grant of Probate.

Probate is proving that the Will is a valid and binding document.

While the Will appoints you as the executor, the Court confirms that appointment, allowing you to deal with the Deceased's assets.

Whether or not you will need to apply for a Grant of Probate depends on the particular assets that make up the Estate and their value.

A Grant of Probate is usually issued within 4-6 weeks from the time in which you apply to the Court.

Administration of an Estate usually takes between 2-4 months but this time can vary depending on the complexity of the assets and liabilities of the Estate.

A POA is not authorised to prepare a Will on behalf of the principal because a transaction of that nature is testamentary and outside of the scope of their powers. There is scope for a Statutory Will, whereby the Succession Act 2006 (NSW) empowers the NSW Supreme Court to authorise a Will on behalf of a person who lacks testamentary capacity.

It depends on the case by case circumstances. There isn’t a one fix answer to this.

Any property you own jointly with someone else, you cannot gift to your children, it automatically reverts to the joint owner after your passing. In order to give any of the property to your children in the Will, we have to split it. We can do that for you, and then you can gift the portion that you own to your children.

It depends on how advanced the dementia is. If it is advanced, we cannot take instructions from him and the matter will need to proceed through NCAT.

This is a very rare possibility. You would have to die without any family or extended family members surviving you.

A Will is a legal document which states the way in which you wish to have your assets distributed after your death. Anyone over the age of 18 years who has the necessary capacity can make a Will. Most people own assets, including a home (real estate) and other personal belongings including jewellery, money, etc, that they would like to give to certain relatives or friends when they die. The only way to ensure that your wishes are carried out after your death is to make a Will.

An executor is the person you want to administer your Estate when you die - that is, the person who is to be responsible for carrying out your wishes when you are deceased within the terms of your Will and protecting the assets of your Estate and distributing them in accordance with your Will.

A General Power of Attorney ceases to have effect if you lose your mental capacity to make decisions for yourself in relation to your finances or assets.

You can instruct us as to the reasons you require a Power of Attorney. If it is because you are going overseas for six months and you want to authorise your friend to act on your behalf while you are away and sell your car, for example, then a General Power of Attorney with certain limitations will suffice.

However, if you wish to prepare for your future and be certain that your finances and assets are looked after by a person you trust, should you lose mental capacity to make those decisions yourself, then an Enduring Power of Attorney is the answer.

An Enduring Power of Attorney will continue to be effective should you lose mental capacity through illness or an accident.

A Power of Attorney is a legal document in which you authorise someone (your “attorney") to make decisions in relation to your finances and your assets on your behalf.

You can have your Power of Attorney registered at the Department of Lands for a fee of $93.00, and your Attorney can then act on your behalf in real property transactions (for example, the sale of your house). Our cost for drafting your Power of Attorney at Marsdens is $200.00 plus GST and disbursements, including sundries at $20.00.

You can appoint your Guardian to make the following sorts of decisions:

1. to decide where you live, for example, in a hostel or nursing home;
2. to decide what health care you receive, for example, treating doctor, community health care;
3. to decide what other personal services you receive, for example, home support services.

You can also authorise your Guardian to make end of life decisions on your behalf, or you can instruct us as to your wishes and these can be stated in your Appointment of Enduring Guardian.

You may think that a Power of Attorney has the authority to also act on your behalf should you become partially or totally incapable of making your own personal and lifestyle decisions.

This is not the case.

An Appointment of Enduring Guardian is a legal document in which you authorise someone (“your Guardian") to make personal/lifestyle decisions on your behalf when you are not capable of making them yourself.

In these circumstances it is advisable to consider a Testamentary Trust being created in your Will which will protect such a child's benefit.

In these circumstances, a Will can be drafted to make provision out of your Estate for the financial support you wish to give that child, who may not be able to administer his/her own financial affairs.

This is called a Special Trust which is incorporated in your Will.

Some types of assets are not usually considered an asset of your Estate when you die and are not able to be distributed as per your Will. One of these assets may be your superannuation entitlements.

Usually, your superannuation will be distributed as per the Trust Deed that governs your superannuation fund.

Most Trust Deeds will allow you to nominate a beneficiary of your choice. Such a nomination can be either Binding or Non-Binding. If it is Non-Binding then, the Trustee of your fund may still be able to use their discretion to determine to whom your superannuation is distributed on your death.

If you make a Binding Nomination, you will have to renew this nomination every three years. You should contact your superannuation fund for more details.

You can ensure your superannuation is paid to your Estate by nominating your legal personal representative (or Executor) as your beneficiary and your superannuation will then be distributed as per your Will.

Dying without a Will, which is referred to as “dying intestate", means that intestacy rules under the Succession Act will determine the distribution of your assets based on the family members who survive you.

Usually, your Estate will go to your surviving spouse (or partner) and/or your children, but without a Will you will have no direct say in who gets your Estate.

The three essential requirements are that you:

1. appoint an Executor;
2. describe your property;
3. name your beneficiaries.

Once we have that information our solicitors can assist you in drafting your Will.

If a member of your family dies intestate (without a Will), a family member, who is also a beneficiary, may need to apply to the Court for Letters of Administration.

In this regard, all other beneficiaries under the rules of intestacy will need to consent to that application.

Again, whether Letters of Administration are required will depend on the assets of the deceased and their value.

The assets will be distributed according to a legislative formula with specific family members receiving a defined percentage of the assets, despite what the deceased may have wished.

You have no legal obligation to leave your Estate to anyone.

A Will is a legal binding contract between you and your Executor.

However, there is legislation enacted which allows your spouse, former spouse and your children to make a claim on your Estate.

The success of such a claim will depend on a number of important factors. You should obtain legal advice if this is a concern of yours.

In those circumstances consideration can be made for you to renounce Probate and in the case of two Executors being nominated, the other Executor can apply instead.

Alternatively, if there is no other Executor named, then a beneficiary named in the Will may apply to become the Executor.