Wills are important legal documents which protect your interests in the event that you lose the ability to make your own decisions, and when you pass away. They ensure that your wishes are fulfilled both for yourself (in the case of a Power of Attorney and for an Advanced Health Directive) and for your loved ones – in the instance where you pass away.
A Will is a legal document which ensures your assets are distributed according to your wishes after you die. Your Will can cover all your assets such as your home, land, car, shares, bank accounts, insurance policies and personal items such as jewellery and family photographs. Essentially, through your Will, you can give to anyone anything that you own.
Having a will is essential. If you pass away without a Will, what is called the law of intestacy will take effect. This law means that your loved ones will not be allocated property in the way you had perhaps had in mind. Preparing a Will is quite a simple process. However, if it is not prepared correctly it will not be valid and it will therefore not be legally recognised. That is why you should have an experienced wills and estates lawyer prepare your will.
Our experienced lawyers for wills and estates in Brisbane, Gold Coast and Sunshine Coast can help you with:
Selecting an executor of your will is not a decision that should be taken lightly.
Executors bear the responsibility of administering your estate after you die. It is generally a thankless position with tremendous legal duties attaching.
Their duties include; carefully reading and interpreting your will, dealing with your remains and organising a funeral if desirable, sending legal notices to various Government departments, advertising an intention and then filing for a grant of probate, contacting beneficiaries, collecting and protecting assets, resolving taxation implications, identifying and settling liabilities and finally distributing the estate to the beneficiaries in the most efficient effective manner, which varies considerably depending upon the estate’s contents, the beneficiaries means and desires.
Executors can be held personally liable if they fail to perform their duties.
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
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
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:
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.
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.
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Estate planning and administration is an area of law that everybody needs at some time.
The following table lists the people and organisations you may need to contact if a loved one has passed away.
Wanting to leave a child out of will, worried about estate money used fighting it
Thoughts on the Public Trustee doing my will?
I have been appointed an executor to a Will, what happens now?
Family provision applications are a necessity when it comes to estate law. They enable family members, who may have been neglected or inadequately provided for
The Powers of Attorney Act does not allow an attorney to enter into conflict transactions Section 73 Avoid conflict transaction: An attorney for a financial matter may
