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Wills are designed to provide a deceased persons’ family and friends with clarity as to how their estate’s assets will be distributed. But what happens when a family member is left out? What if the provision is inadequate? Or, what if the deceased person dies without a will?
Family provision applications are not concerned with achieving fairness or equality. Instead, the statutory purpose of these applications is to adequately provide for an eligible person (including a spouse, child or dependent).
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.
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.
The Executor is the person who will administer your estate. In simple terms – who will distribute your property in accord accordance with your request?
Your current will may be invalid if:
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.
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.
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 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.
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
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.
The Executor is the person who will administer your estate. In simple terms – who will distribute your property in accord accordance with your request?
Your 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.
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.
You can use your Will to detail how you wish to be buried and how you wish your funeral arrangements to be conducted.
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.
There are some important factors to consider when making a Power of Attorney. You may appoint up to four attorneys and the people you appoint must be over 18 years of age. They must not be your health care provider or your paid carer and must not be bankrupt.
Importantly, some examples of the powers that a Power of Attorney will have if they were nominated to act on health matters include: whether to diagnose, maintain or treat a person; and, whether to administer first aid treatment. However, such a person cannot affect your basic rights such as deciding whether or not to withhold life support.
Finally, it is important that all the legal requirements of a Power of Attorney are satisfied. Powers of Attorney can be prepared and registered by you, but it is much safer to get a Solicitor to prepare and register such a document.
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.
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
