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Wills and Estate Lawyers
At Effective Legal Solutions our experienced wills and estate lawyers will step you through the processes to ensure family members are looked after when you die and that your legal and financial affairs are managed by those you trust should the unforeseen happen.
Life is unpredictable, and death is inevitable, but you can ensure your hard-earned assets go to those you intend to benefit when you die, and your legal and financial affairs are left in the hands of people you trust.
Our Wills and Estate Planning services include:
- Preparation of simple or complex Wills including testamentary trusts
- Advising and preparing Enduring Powers of Attorney and Guardianship documents
- Interpreting the terms of a Will
- Dealing with intestacy
- Applying for Probate and Letters of Administration
- Administration of estates including property transfers
- Advising on executor duties and obligations
- Family Provision Claims
- Contesting Wills and defending estate litigation in the Supreme Court
Why Do I Need A Will?
A Will may be one of the most important legal documents you make. Having a valid Will ensures your loved ones are financially protected when you die.
Your Will appoints one or more family members or trusted friends as executors to distribute your estate and assets in accordance with your wishes.
Your Will can also appoint guardians for minor children and provide direction regarding your funeral arrangements.
A well-structured Will provides certainty to your loved ones and facilitates a more efficient and cost-effective administration of your estate.
Your Will may be simple or complex, taking into account your financial, family and personal circumstances.
It should be carefully considered and professionally prepared to ensure it complies with strict formality requirements.
The terms should be clear and unambiguous, and tailored to protect at-risk beneficiaries, avoid unwanted tax implications and minimise the potential for family provision claims and disputes.
What Is An Estate In A Will?
An estate is simply the balance of a person’s net worth at a certain point in time.
It considers all assets, legal rights and interests held by the person (both jointly and individually) in tangible and intangible property (such as real estate, cash, personal property, investments, shares and intellectual property), less all liabilities.
The responsibility of an executor, trustee or administrator is to pay all estate debts and distribute the net estate assts in accordance with the deceased person’s Will or the rules of intestacy (see below).
What If I Die Without A Will?
Dying without a Will is referred to as dying intestate.
By dying intestate, you leave the distribution of your estate to chance.
You do not get to choose who will manage your estate, and your assets could go to somebody that you did not wish to benefit rather than those you wanted to provide for.
Dying without a Will is likely to cause additional stress and anxiety to your loved ones at a time when they are already grieving.
The complexity of determining your estate without a Will adds additional legal costs, depleting the value of your estate and fuels the potential for family disputes.
Who Gets The Estate When There Is No Will?
Without a Will, you have no say in how your estate is administered.
Your assets will be distributed according to the rules of intestacy – a statutory formula providing for a specific order of distribution of the estate.
These rules vary across each state or territory, but typically follow the deceased person’s next of kin and are intended to reflect society’s expectations as to who should benefit from the estate.
The problem with this however is that ‘expectations’ are not universal, and no two families are the same.
Accordingly, the rules of intestacy may not consider the unique circumstances or the real wishes of the deceased person.
Certain family members who shared no meaningful relationship with the deceased person may miss out at the expense of a family member or friend that the deceased intended to benefit.
By planning ahead, you can avoid the division of your estate without a Will, have a final say in how your hard-earned assets should be distributed and minimise the risk of your family members facing potential disputes and estate litigation.
What is Probate?
A grant of Probate is an order made by the Supreme Court validating the Will of a deceased person and vesting legal title of the estate in the executor.
This enables the executor to deal with the assets in accordance with the Will.
The executor must arrange to pay any estate debts and distribute the remaining assets to the beneficiaries.
As the legal representative of the estate, the executor can be liable for losses and is therefore usually guided in carrying out his or her duties by a wills and estate lawyer.
Do I Need A Grant Of Probate?
A grant of Probate is not always necessary and depends on the size of the estate, the nature of the assets and the way the assets are held.
Small, uncomplicated estates where assets were jointly held by the deceased with another person (such as the family home) may simply be transferred to the surviving owner by completing the necessary transfer applications with relevant authorities.
A grant of Probate is required to transfer real property (real estate) that was held individually by the deceased or as a tenant in common (i.e. not jointly) with another person or entity.
Probate is also usually required for larger, more complex estates, and is generally a prerequisite for a financial institution releasing larger sums of money.
Letters Of Administration
Applying for letters of Administration enables an interested person to become an administrator of an estate without a Will.
The application, which requires the preparation of various legal documents, is made to the Supreme Court.
Once appointed, the administrator has the same powers and responsibilities as the executor of an estate.
Letters of Administration may also be necessary if a Will exists, but the appointed executor has died or is no longer able to fulfill that role.
What Is Estate Planning?
An effective estate plan concerns more than just making a Will.
It involves consideration of what should happen if you are unable to look after your own affairs while you are alive.
An Enduring Power of Attorney is a legal document appointing a family member or friend you trust to manage your legal and financial affairs if you become incapacitated.
An Appointment of Enduring Guardian appoints somebody to make your lifestyle and healthcare decisions if you lack capacity.
Your guardian may consent to medical and dental treatment and make accommodation arrangements on your behalf.
These documents give substantial power to your attorneys / guardians and should clearly set out the scope or limitations you wish to impose.
Benefits from a superannuation fund should also be considered in your estate plan.
Superannuation and death benefits do not automatically form part of your estate and must be distributed to eligible dependants under superannuation legislation or in accordance with a Binding Death Benefit Nomination (BDBN).
You can complete a BDBN nominating eligible beneficiaries to benefit from your superannuation account.
Without a BDBN the payment of death benefits to an eligible beneficiary may be determined by the trustee of your superannuation which may not reflect your wishes.
Will & Estate Planning Checklist?
- Arrange to make a valid Will that encompasses your testamentary wishes and appoints a trusted person or persons to look after your estate.
- Ensure your executors know where your Will can be located. Most lawyers provide a free safe custody service for the safe storage of your Will and other important legal documents.
- Talk to your family members and loved ones about your values and wishes should you lose the capacity to make your own legal, financial and healthcare decisions.
- Check your superannuation policies to ensure you have nominated appropriate eligible dependents to receive your death benefits.
- Review your Will and estate plan regularly to ensure it reflects your wishes in accordance with your current personal, financial and personal circumstances. This is particularly important if you have recently commenced a relationship, married, separated or divorced.
Left Out Of A Will?
If you feel that you or a family member have been unfairly left out of a Will you may be eligible to make a Family Provision Claim under the Succession Act 2006 (NSW).
A successful claim may result in a settlement or Court order varying the terms of a Will (or proposed estate distribution in the event of intestacy) in your favour.
Generally, an eligible person includes a partner (spouse, former spouse or de facto of the deceased person), a child of the deceased person, and in some circumstances, a dependent grandchild or household member or person living in a close personal relationship with the deceased at the time of his or her death.
Challenging A Will
Challenging a Will refers to a claim that the Will itself is not valid. Will challenges most often relate to claims of undue influence, fraud, forgery or that the testator lacked mental capacity to make the Will.
Challenging the validity of a Will or making a Family Provision Claim requires careful consideration under the guidance of an experienced lawyer. These claims must be made within strict time-frames and meet formal requirements.
Cost Of Writing A Will
Effective Legal Solutions has fixed-fee single and couple packages available for simple Wills, Powers of Attorney and Enduring Guardian documents.
TYPE OF WILL
Simple, Individual Will
FEE TO WRITE WILL
Our Central Coast team is skilled in preparing Wills and Estates for small and complex estates and can assist in tailoring a plan that suits your personal, financial and family circumstances.