Wills and Estate Lawyers Canberra
If you don’t know what to do, or whether to do anything at all, ask yourself what you wish you had done, if the worst happened tomorrow.
Death, wills and estates are not something we like to think about.
Death is an unavoidable part of life, and unfortunately, we don’t all know when it may come. It may be tomorrow, a couple of years from now, or (hopefully) decades into the future. No matter when it is, it’s best to be prepared.
This preparation is in the form of a legal document - an estate plan, and everyone over the age of 18 should have one.
What Our Canberra Estate Planning Lawyers Look At
What Our Wills and Estate Lawyers Can Do For You
Every person’s estate and estate planning documents will differ and depend on their circumstances. Some common documents that may form part of your will and estate planning include:
- Testamentary trusts (including protective trusts)
- Enduring Powers of Attorney (ACT and NSW)
- Appointment of Enduring Guardianship (NSW)
- Health Directions (ACT) and Advanced Care Directives (NSW)
- Death Benefit Nominations (Binding and Non-Binding) for superfunds and life insurance
- Succession deeds for already existing trusts
- Letters of Wishes
- Private loan agreements
- Prenups (Binding Financial Agreements)
Probate and Estate Administration
Navigating probate and estate administration requires expert guidance from a wills and estate lawyer so that assets are distributed according to a decedent’s wishes. Consulting with knowledgeable estate lawyers ensures compliance and facilitates a smooth transition during these emotionally charged times. Proper representation minimises deceased estate disputes and protects beneficiaries’ interests.
Contesting a Will
Certain people can contest a will if they believe they have not received adequate provision or there are issues with the legitimacy or interpretation of a will. The possibility of someone contesting your will can be deeply emotional, especially when it comes to estranged family members, former spouses and blended families. The laws around contesting a will vary from state-to-state. Our Canberra estate lawyers can advise you if your will is vulnerable to being contested in both the ACT and NSW, and how you can prepare your will and structure your estate, to minimise the risk of someone contesting your will, and ensure the rights and interests of your intended beneficiaries are protected.
Power of Attorney
A Power of Attorney (POA) is a legal document that grants one individual (attorney) the authority to act on behalf of another individual (the principal). This authority can range from specific tasks, such as managing a single financial transaction, to broader powers, like making medical decisions. There are various types of POAs, including general and enduring. It’s essential to draft a POA with precision to ensure the principal’s wishes, including financial circumstances and interests, are adequately safeguarded.
WILLS AND ESTATE PLANNING PROCESS
1. Get in touch
2. Complete an interview
3. Review your plan
4. Sign your documents
Frequently Asked Questions
Your estate is everything you have in your name. This may include real estate, bank accounts, cars, debts, shares, cryptocurrency, pets, etc. Everything in your estate can be distributed under your will.
Property owned jointly with other people (including real estate and bank accounts), may not be part of your estate, unless they are owned in a specific way. Superannuation, life insurance are not automatically part of your estate, but they can be. Any assets owned by private companies and trusts are also not part of your estate.
As part of your estate plan, we will determine what’s “in” and “out” of your estate, and plan to ensure that what’s “out” still passes in accordance with your wishes.
A will is a legal document that outlines who they want to manage your estate (executor) and how an individual wants their assets distributed after their death as their final wishes. It can also specify guardianship arrangements for minor children and other important directives. To be legally valid, a will must meet certain requirements, such as being of sound mind when drafting the will, and it must be signed in the presence of witnesses.
An executor of a will is an individual or institution, such as law firms, designated by the deceased to carry out the instructions and wishes specified in the will upon their death.
Beneficiaries are individuals, entities, or organisations designated to receive benefits or assets from various instruments such as estates, wills, trusts, insurance policies, retirement accounts, or other contractual arrangements. In the context of a will, beneficiaries are the recipients of an inheritance, which can include money, property, or other assets.
If you die without a good estate plan, your assets will be distributed under the laws of intestacy, which differ in each State, Territory and circumstance. Superannuation will pass in accordance with superannuation law, which may reflect what you want to happen.
The costs, both monetary and emotional, can be great on your family member if you die without a will, as they will require undergoing legal proceedings to sort it out.
Yes, they can. But this should be documented in your will and Power of Attorney documents. The law does not automatically grant your family members the ability to make decisions for you, and without the appropriate documents, they would have to go to a Court or tribunal to be given the power to do so.
Superannuation law provides a very short list of people eligible to receive your superannuation after your death. And then the list is even shorter for those who can receive it tax free. If you want to leave your super to a specific person or people, it needs to be formally documented, otherwise, the superfund will make that decision for you.
No. Certain people can always challenge your estate if they do not feel they have been adequately provided for. Regardless, it’s essential to have a will, especially if you’re considering “cutting someone out”, to show your intentions and to make the process of challenging as difficult as possible for that person.
A letter of wishes is a document that can accompany your will and provides guidance to your executors and trustees about how you want them to deal with your estate. It is not legally binding but can provide a lot more context to your will, and include information about why you have put together your will in a certain way, how you would like people to work together, and how you would like any young children raised.
In Australia, there is no specific inheritance tax. Assets that are received via an inheritance are generally tax-free, subject to some exemptions. These are that some tax may be applicable to superannuation death benefits that pass to certain people, capital gains tax (CGT) liabilities may pass on to your beneficiaries, or there may be taxes, duties or other government levies that apply to certain trusts. An estate can be structured to plan for any taxes that may apply.
A power of attorney is a document that gives someone (the attorney) the ability to make decisions on behalf of another person (the principal). This may be because the principal is unavailable to carry out certain transactions (for example, because they are overseas), or if they have lost the mental or physical capacity to make decisions for themselves. There are different types of powers of attorney, so it is important you receive advice on the correct type for your situation.
Attorneys appointed under a power of attorney can make decisions about property and financial matters, and in the ACT about medical, personal care and medical research matters. In NSW, medical decisions are covered under a document called an Appointment of Enduring Guardian. You can, however, provide directions, or place conditions or limitations on the decisions your attorney is allowed to make.
I want my spouse to be able to live in my house, but I want it to go to my kids. Can I do this in my will?
Yes. This is called a “right of residence” or “right of occupation”. You can grant these rights in your will to anyone and can place conditions on those rights (for example, that they are required to maintain the property, pay certain expenses, etc.). You can also give expanded rights to someone, under a “life tenancy”. It is important to consider the implications of these rights on you, the intended occupant and the ultimate beneficiaries before considering including them in your will.
Not initially. If you do not have a valid will, then the state will only receive your assets if there is no one else under the intestacy rules who can benefit from your estate. So, your spouse, children, grandchildren, siblings, grandparents, aunts, uncles and first cousins would need to have died before you before the state receives your assets (noting that list varies in each State and Territory).
You can nominate someone to receive your pets after you die in your will.