Wills + Estates Overview

The main objective of a Will is firstly to make sure that everything that you have managed to gather around you during your lifetime (valuable and sentimental), goes where you want it to go; and secondly to ensure that your family are not left with a mess to sort out at a time of grief and heartache as this is also very expensive

The assets go to the next-of-kin according to schedule set out in the Succession Act 1981. Court must appoint an executor which may be a family member or the Public Trustee.

Your current will may be invalid if:

• It is not prepared in accordance with the relevant legislation

• If you marry your will is revoked with certain exception

• If you divorce certain provisions of your Will may be revoked

It is best to review your will after certain events in your life; such as marriage, divorce, children or changes to your financial situation. When circumstances like these arise in your life, it is best you revise your Will to ensure that you, and your family, are prepared for whatever may come in the future.

If your Will is prepared by the Public Trustee, they will appoint themselves as Executor of your estate. If we prepare your Will you will nominate your chosen person or persons to act as executor of your estate.

You may appoint up to four attorneys and they:

• Must be 18 years of age or over

• Must not be your health care provider (i.e. your doctor, nurse or carer)

• Must not be a bankrupt

• Must not be a paid carer

The Executor is the person who will administer your estate. In simple terms – who will distribute your property in accord accordance with your request?

Beneficiaries are those people who will receive the property in your Will. You can make special bequests in your Will such as particular items of jewellery or family heirlooms. You can also leave some or all of your property to charity.

A Power of Attorney is a legal document authorising another person to act on your behalf in relation to your financial and personal health matters. This person can be a trusted friend, spouse, partner or relative. It is a method of allowing someone to handle your affairs if you go overseas, take an extended holiday, suffer from poor health or reach an age when you need greater assistance.

An Advanced Health Directive sets out your wishes and directions in regards to certain treatment that could be provided to you if, for whatever reason, you are unable to communicate your wishes.

In an Advanced Health Directive you may wish to detail certain religious considerations with respect to your treatment, what people you want contacted when you get sick and can also make general comments such as

“I value life, but not under all conditions. I consider dignity and qualify of life to be more important than mere existence”.

When making an Advanced Health Directive it is a requirement that a doctor explains to you the consequences and effects of the document and also must sign the document. It is important to make your regular doctor, the nursing staff and any family and friends aware of an Advanced Health Directive to ensure you wishes are carried out

An executor is a person appointed by a will to carry out the deceased’s wishes. This includes funeral arrangements, obtaining probate, discharging debts and keeping proper accounts. The most notable duty is that executors must collect, protect, manage and distribute estate assets too beneficiaries in accordance with the will.

When will executors be engaging in misconduct?

Here are a few examples:  

• executors acting in their own interest to the disadvantage of the beneficiaries;
• misappropriating estate assets;
• unnecessarily delaying administration and distribution of the estate (executors have a year to perform these obligations);
• failing to keep a proper account for the estate; and
• failing to comply with the directions in the will.

If probate or letters of administration have been granted, beneficiaries can apply for an order to remove an executor and appoint an independent person (such as the Public Trustee or a solicitor) to administer the estate.

However, it is important to note that courts are generally reluctant to interfere with the appointment of an executor.

The process of removal requires the court to declare the executor ‘unfit.’ This means the person is not willing, adapted or suited to the office of executor. Executors can be declared ‘unfit’ if it can be established they have engaged in misconduct or have neglected their duties for an unreasonably prolonged period of time.

The Court will consider whether removing the executor is in the best interests of the beneficiaries and whether it will help the due and proper administration of the estate.

Who will pay the legal costs?

In most circumstances the estate will pay for the legal costs incurred. However, a person who brings a meritless claim to remove an executor and subsequently fails could be left paying their own costs as well as the estate’s costs.

By ensuring that your Will is valid, current and has been drawn up by a professional, such as Bennett Carroll Solicitors. We will advise you on the most effective means of distributing your assets and ways in which assets can be protected.

You can intentionally omit a relative or a friend from your Will and give the reason why you do not wish for them to receive any of your property.

If you lose mental capacity, without an Enduring Power Of Attorney in place, there may be no one with the legal authority to manage your financial affairs. Your family or advisers would then need to apply to the government in your State or Territory to have someone appointed. This can be expensive and a difficult process. 

If your attorney wants to use the Enduring Power Of Attorney to deal with any real estate, the Enduring Power Of Attorney may need to be registered with the Land Titles Office. Even if there is no requirement you may be able to do so voluntarily.  By registering it, the Enduring Power Of Attorney

• will be on record as a public document

• will be kept safe from loss or destruction

• may be more easily accepted as evidence that your attorney has authority to deal with your property or financial affairs.

The Public Trustee will draw a Power of Attorney for free on the condition that they are appointed your attorney. They then charge fees on transactions carried out on your behalf. A solicitor will charge you a one-off fee for drawing the document and you can choose your attorney.

How does an Enduring Power Of Attorney differ from a General Power Of Attorney?

A General Power Of Attorney ceases to have effect after you lose the mental capacity to make financial decisions. An Enduring Power Of Attorney will continue to have effect whatever your mental capacity.

You can revoke your Enduring Power Of Attorney at any time, provided you have mental capacity to understand what you are doing at the time you revoke it.

You can use your Will to detail how you wish to be buried and how you wish your funeral arrangements to be conducted.