Wills & Estates
Planning for your family’s future after you’re gone is a really important legal task.
If you take the time now to make an effective legally binding Will and Testament you can save your family not only stress but money in what will undoubtedly be a difficult time for them.
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.
We can help
- Advise you in regard to estate and Probate laws
- Write a will that maximises the inheritance for your family
- Advise you in regard to choosing executors and guardians
- Minimise the chance that your will is contested and subject to litigation
- Safely store your will and other important legal documents
Making a Will
There is no one answer about how to do your Will. It all depends on your assets, your circumstances and who your beneficiaries will be.
You need to make a will that makes your wishes clear, that avoids confusion and conflict among-st your loved ones, and that is legally valid and binding. Doing this will protect your family and friends from costly and stressful legal disputes.
We know the potential pitfalls, and will ask you all the right questions to make sure that you have considered every possibility. We can advise you as to whether you would be best with a Will or a Testamentary Trust. We can design your Will in such a way to help protect your family from expensive estate litigation after your death and we can safely store your Will.
Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the Will are upheld.
You can designate anyone as a beneficiary and distribute your assets in any way you like, however if you don’t provide for your family and dependents, your will can be contested and your hard won assets used on litigation fees.
You also should consider the effects that an inheritance may have on your beneficiaries. In some cases a testamentary trust can sidestep potential taxation problems, so it’s important that you get specific advice about your situation.
To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed, and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries and must be over 18.
If there is any doubt, or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your Will.
You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, death of a beneficiary or if your assets change significantly. We also recommend that you take a look at your Will every couple of years just to make sure that it is still the best instrument for you and for your family.
Powers of Attorney
A Power of Attorney is a legal document whereby one person grants another person the authority to make legal and financial decisions on their behalf. A Power of Attorney can be used in several ways – from having another take care of your affairs whilst travelling to times of extended illness.
An Enduring Power of Attorney takes this a step further, whereby the person nominated to manage the affairs (also called the ‘Donee’) may continue to manage the affairs once the person giving the power (also called the ‘Donor’) is found to have diminished mental capacity due to injury or illness. This arrangement can remain in place as long as the donor is still alive.
Powers of Attorney can be prepared in two ways – to come into effect immediately and to continue once the donor suffers a loss of capacity; or to come into effect at a future time (such as the onset of mental incapacity).
In order to sign a Power of Attorney, the donor must be capable of understanding the nature of the document they are signing and its effect. It is therefore important in situations where a Power of Attorney must be appointed that it is done so in a timely manner.
Guardianship
An Appointment of Enduring Guardianship is a legal document whereby you grant the right to make decisions in regard to your health and living arrangements to another person. This comes into effect only when you are deemed to have lost the ability to make decisions for yourself and gives your family the right to speak to health professionals about your medical situation. We can assist by ensuring that any wishes you have for decisions concerning your health are clear and recorded in the Enduring Guardianship document.
Deceased Estate
At Castro Legal we understand that dealing with a deceased estate is one of the more difficult challenges in life. From mountains of paper work to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life.
So, let us help you by:
- Interpreting the Will of the deceased in terms of estate laws
- Advising executors and trustees in regard to their duties and rights
- Informing government bodies including Centrelink and Veterans Affairs
- Applying for Probate of the Will in the Supreme Court
- Dealing with intestacy (where there is no Will)
- Applying for Letters of Administration (if the Will is deemed invalid or is absent)
- Identifying estate assets and liabilities
- Obtaining valuations of estate property
- Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
- Selling or transferring estate property including estate auctions
- Paying estate debts including mortgages, funeral costs, and testamentary expenses
- Administering trust funds
- Distributing bequests and inheritances to beneficiaries
Probate & Letters of Administration
Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. If you are the Executor of an estate, you will likely need a grant of Probate to deal with the assets of an estate, such as selling property, obtaining bank funds and distributing gifts to beneficiaries.
We can assist with:
- Advising you on the rights and duties of an Executor
- Assisting you to locate and collect the deceased’s assets
- Preparing an Inventory of the deceased’s assets
- Obtaining a Grant of Probate or Letters of Administration
- Publishing the required Notice of Intended Application for Probate
- Preparing all legal documents and eliminating unnecessary errors
- Filing the legal documents at the Supreme Court
- Publishing a Notice once Probate has been granted
We aim to keep you fully informed of the matter and to have the Grant of Probate or Letters of Administration obtained without delay.
If the deceased person did not leave a Will, the administrator (usually a family member or close friend) must apply to the Supreme Court of New South Wales to obtain Letters of Administration. Once the Letters of Administration is granted, the administrator is able to distribute the deceased’s assets.
There are two circumstances when letters of administration can be applied:
- The deceased person dies without a will (intestate)
- The deceased person left a will but there is no executor available to apply for a grant of probate. For example, if the will did not name an executor, or the sole executor has died or is otherwise unwilling or unable to act.
If a deceased person dies without a Will, their estate will be inherited by your relatives in an order set out by the law (Intestacy Rules). The order is as follows: Spouse, children, parents, brothers and sisters, grandparents, aunts and uncles and cousins. If you do not have eligible relatives, your estate will pass to the Crown (i.e. the State of NSW).
Usually, the deceased’s ‘next of kin’, which is the deceased’s closest relative can apply for the grant.
The court may grant administration to:
- the spouse of the deceased
- one or more of the next of kin
- the spouse jointly with other relatives.
If there is no next of kin or none that are appropriate or willing to apply for the grant, then the Court may grant administration to:
- NSW Trustee & Guardian, or
- any other person the court thinks fit.
You must apply for letters of administration within 6 months from the date of death, unless there is a reasonable explanation for the delay. If you apply after 6 months, you will need to file an affidavit of delay at the Supreme Court of New South Wales.
Professional costs in obtaining Letters of Administration are regulated by the Legal Profession Uniform Application Act 2004 which calculates the professional costs according to the gross value of the estate’s assets. Castro Legal will provide to you full disclosure of the costs before commencing an application for Letters of Administration.
Frequently Asked Questions
Having a Will is the only reliable way to ensure that the people you care about are adequately protected when you are gone. Making a Will allows you to decide who will inherit your estate and assets when you die. If you die without a Will, your estate may be inherited by someone who you did not intend to give your estate to.
You will have no control over how your estate will be inherited.
If you die without a Will (known as “Intestate”), your estate will be inherited by your relatives in an order set out by the law (Intestacy Rules). The order is as follows: Spouse, children, parents, brothers and sisters, grandparents, aunts and uncles and cousins. If you do not have eligible relatives, your estate will pass to the Crown (i.e. the State of NSW).
Your “estate” is all your possessions and assets including property, vehicles, jewellery, furniture, savings, shares etc.
You can include the following in your Will:
- Specific assets to particular people
- Gifts to charities
- Funeral/burial arrangements
- Guardianship for minor children
- A trust to provide for your children
Your lawyer can advise you further on what you can and can’t include in your Will.
You can prepare your own Will however it is not recommended.
If a Will is prepared incorrectly and does not conform with strict legal requirements, the Court may decide that it is not valid. If you die with a Will that is not valid, your estate will go in accordance with the rules of intestacy and the wishes in your Will will not be carried out. If you are not familiar with the rules to create a valid Will, you should use an experienced lawyer who will ensure that your Will is prepared correctly.
A lawyer will ensure that the wording of the Will is clear and that your intentions and wishes are properly recorded. A lawyer can also provide you with advice on legal issues and draft your Will in a way that minimises the chance that your Will is contested.
A Will is an important legal document. It is therefore advisable to have your Will professionally drafted to ensure your Will is valid and legally binding.
You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, death of a beneficiary or if your assets change significantly.
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.
An executor’s duties may include responsibilities such as:
- Organising the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting monies belonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.
It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission.
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.
Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.