Wills & Estates Law
Wills and Estate law is dealt with on a state by state basis in Australia. It is the system within the law that exists to help people prepare for how their affairs will be dealt with when they are gone, and to create the rules for those administering the estate of those who have died with or without a will.
What is Estate Planning?
Estate planning involves thinking ahead and planning for the unexpected events that life can bring. It includes preparing the documents that are necessary to deal with your affairs for the day when you can’t.
You might hear lawyers talk about 3 key documents for you to consider when it comes to making an estate plan or when reviewing your estate planning needs. The common estate planning documents are:
- Enduring Power of Attorney – this document says who can make decisions on your behalf if you lose the capacity to make your own decisions.
- Advanced Health Directive – this document specifies what medical treatment you do (and do not) authorise to be used if you are in a terminal or critical health stage.
- Will – this document specifies who has the responsibility of sorting out your affairs, and who is to receive your estate. This document only comes into effect when you die.
These documents are needed when the unexpected happens in life. This could be something as simple as you are travelling and need someone to be able to sign documents on your behalf. It could be because you become seriously sick or injured and cannot make decisions while you are being medically treated. Or, it could be because someone has died leaving money or property.
What is a will and what does it do?
A Will is a legal document that allows you to specify a number of things including:
- Who is going to be in charge of managing your estate (your executor).
- Whether there are any specific gifts you would like to make to friends, family or a charity.
- What will happen with your affairs, including your assets, your liabilities and even your pets.
- Who will care for your children (guardianship appointments).
- Whether you have any preference around funeral arrangements and your remains
It is critical that your Will has been validly prepared, and deals with the entirety of your estate. It is risky to assume that a Will template you have downloaded will be considered valid by the courts. While many areas are softening their legal requirements, a Will continues to have very specific rules around the way they are to be signed and who can witness a Will. Each State and Territory in Australia has different succession laws. Estates can be complex to administer, even if you hope it can be kept simple.
There really is no “one size fits all” when it comes to your wishes and your Will. If you want your Will to be enforceable, and not open to challenge, there it is important to get professional legal advice that is specific to your circumstances.
Part of our role when giving you legal advice is to go beyond “what do you want your Will to say” to ask the questions that can help identify future potential claims. Our advice will then make sure those things have been considered and prepare your Will so that it adequately manages those complex issues that may arise.
Let Integrated Family Law show to make sure that your documents focus on what matters to you … your family, your assets, your wishes … and leave the legal worries and trouble shooting to us.
What doesn’t a will do?
A Will has no effect until the Will-maker has passed away. Your Will cannot do anything at all until then, and it doesn’t give any guidance or assistance if you were to become seriously, or even critically ill.
What if I don’t make a will?
If you don’t have a valid Will in place, then your estate will be dealt with by the rules of intestacy. In Queensland, these rules are set out in the Succession Act. They are a set of rules that do not take into account your own personal circumstances. The rules of intestacy specify who can act (be appointed as the decision maker) and how the assets of a deceased person are to be distributed.
Your loved ones would need to make an application to the Supreme Court of Queensland asking for permission to manage your affairs. That is called becoming a Legal Personal Representative (LPR). However, your LPR must be someone from the list of potential people set out in the Succession Act. In fact, an appointment can only be made to someone further “down the line” if those higher up the line of priority confirm that they are unable or unwilling to act.
This means that it might not end up being the person you wish or hope who would manage your estate. Why let the law decide who is the person you trust most, when you can nominate that quickly and easily in a properly prepared and signed Will?
I’m getting on a bit, can I still do a new will?
We’re happy to meet with our older clients to discuss their estate planning needs. We love a good chat about life and the lessons only learned by living a long life.
We take our obligations to get your will right, very seriously. For older people, our involvement will often include having your lawyer and your doctor conferring with each other to confirm you have the capacity to prepare those instructions. Again, this is a step that we take to protect our clients from potential manipulation from friends or family members, as well as making sure that your Will is not open to challenge later.
I have been left out of the Will. What can I do?
The Supreme Court of Queensland has authority to accept or reject Wills, and it can make orders for provision to be made for family members that may have been left out of a Will. The Court will assess all of the circumstances, including your own financial circumstances, the size of the estate and the nature of your relationship with the deceased.
Strict time limits apply for these applications, so call us quickly to discuss your options.
What is Estate Administration?
Estate administration involves the practical and legal steps involved when managing the estate and affairs of someone who has passed away. At it’s simplest, estate administration involves finalising someone’s affairs. This will usually include immediate funeral decisions, closing their bank accounts, selling assets (if necessary), finalising contracts (eg insurances and other service contracts), and then distribution as appropriate.
Whilst the broad end result is the same (the finalisation of the affairs of the deceased), the path forward will depend heavily on whether there is a valid and properly prepared will, or not.
What happens if there is a Will?
When a person dies leaving a thorough and properly prepared will, the administration process is significantly streamlined and can become a series of next steps to be completed. The wishes of the deceased are clearly defined, the appointment of who has the responsibility to make decision is clear, which leads to a relatively simple and straightforward process.
Some estates will require significant legal assistance throughout, some estates will require merely a guiding hand at the outset, and there is of course every variation in between.
What happens if there is no Will?
If you can’t find your loved one’s Will, or don’t know if they had one, a few first few steps you can take trying to find it are:
- Ask other family members, and perhaps even your loved one’s close friends, if they know whether your loved one ever had a Will prepared.
- If you can remember a law firm’s name mentioned by your loved one, try contacting that law firm to see if they have any records of a Will.
- Contact your local Law Society (in Queensland, that is the Queensland Law Society)
If no Will can be found, then it will be considered an “intestate” matter. That means that the intestacy rules set out in the Succession Act must be followed. That process starts by applying to the Court for “Letters of Administration” seeking permission that the person making the application be granted the authority to manage the estate as the Legal Personal Representative (LPR). Usually it would be the deceased person’s next of kin, but that’s not always the case.
The person applying to be appointed as Legal Personal Representative must be someone from the list of potential people in the Succession Act. If someone further down the line wishes to apply, they must show that those people higher up the line of priority have confirmed that they are unable to unwilling to act.
After the Court makes the grant, then you will need to manage and distribute the estate by following the guidelines in the Succession Act.
I’m an executor. What do I do?
A thorough and properly prepared Will appoints one or more people as the executor or executors. They are the people responsible for the proper administration of the estate. They are the decision makers about how and when things will happen, but not what will happen – that part is dictated by the Will. The executor or executors will decide which assets will be sold and converted to cash, and can be the trustees of any money left for the benefit of children under 18 years of age.
An application to the Supreme Court of Queensland may be required to obtain Probate. A grant of probate may not be required for some smaller estate. Probate provides Court approval that the particular Will submitted is the one to be followed.
Whether or not to apply for probate is something you should discuss with us. Let our experience be your guide.
How long does it take to finalise an estate administration?
An estate administration can often be a somewhat lengthy process. If there are people who might bring a claim against the will, there is a timeframe of 9 months from the date of death within which they can bring this claim.
Most estates can be finalised within about 6 to 12 months, however more complicated circumstances can means some estates take longer to be finalised. A wise executor will wait until the 9 month claim timeframe has expired before making distribution to any beneficiaries. There may well also be the need to prepare a final tax return for the deceased or a tax return for the estate itself.
As with all legal matters, we are here to advise, guide and assist. You, however, are the decision makers. We are happy to provide as much or as little assistance as you require. Come talk to us about our approach. You will find that we have not lost sight of the fact that an estate administration ALWAYS involves the loss of someone special. Let us help you to honour them, by ensuring a swift and smooth handling of their estate.
Enduring Powers of Attorney
What is an Enduring Power of Attorney and what does it do?
There are two types of Power of Attorney – the general appointment and an enduring appointment.
A general Power of Attorney allows you to formally appoint someone to make decisions or sign legal documents on your behalf for a set period of time or for a specific event. This is usually a specific and relatively short term document.
An Enduring Power of Attorney allows you to choose who else is able to make decisions on your behalf about a smaller or larger range of things. It is a long term and future focused document. When you appoint an enduring attorney, you can choose for them to be able to deal with health matters only, or financial matters only, or (most commonly) for both types of matters.
When would I need an Enduring Power of Attorney?
You would need an Attorney at any time when you either can’t make your own decisions or aren’t available to sign paperwork.
If you travel regularly or are about to take an international trip, you may wish to give your attorney immediate financial authority to do things on your behalf. This would allow your attorney to keep your life moving while you are away. This could include being able to access your bank account to pay bills, sign a contract for the purchase or sale of a house or keep your business operating without your involvement. In our experience, with the ease of email and other internet forms of contact and the increasing acceptance of electronic signatures by banks and similar organisations, this document is in less demand.
You can also specify that your attorney is only authorised to act on your behalf once you have lost your own capacity to make decisions. This means that no one else can interfere in your personal decisions or affairs, unless or until you are seriously injured or so unwell that you cannot make decisions for yourself.
Why do I need to appoint someone? Won’t “they” know who to ask?
Legislation, such as the Privacy Act, protects you by making sure that no one else can make decisions for you, or access your private information, with your specific approval. These sorts of protections that are common in our modern world means that formal steps need to be taken when you want others to be able to help you.
In our busy and complicated lives, it is not always clear to others who you would want to make decisions for you when you can’t. An Enduring Power of Attorney gives you peace of mind that if you were injured, or became very seriously ill, that only those you trust can make decisions about your health care, or manage your finances on your behalf.
Who should I appoint as Attorney?
Appointing someone as your attorney is a very serious matter. It authorises others to make decisions for you as though they were in your shoes.
Keeping it plain and simple, an attorney could list your house for sale, access your bank account and authorise medical treatment. Therefore, it is important to be able to talk this appointment through with an experienced professional and make sure that appointment only operates when you want it to.
Can I change my Attorneys?
Relationships often change over the years. It is critical that you review your power of attorney documents regularly so you can be sure that your appointed attorney (or attorneys) are the ones you would still want to make decisions for you.
If things have changed, you can revoke someone’s appointment as Attorney, at any time, without having to give any reasons other than “I want to change who my attorneys are”. You can do this at any time, unless you have lost your capacity to make decisions.
Advanced Health Directive
What is an Advance Health Directive and what does it do?
An Advance Health Directive allows you, while you are well, to make decisions around the health care to be provided to you if you end up in a circumstance involving terminal or critical health care choices.
This document, often called an AHD for short, requires involvement from both your legal and your medical advisors so that you are well informed of your options and the health care decisions you are making.
Why would I need an Advance Health Directive?
An Advance Health Directive (AHD) allows you to take responsibility for your own health care. It is another way that you can demonstrate to your family your willingness to be responsible for your own life and your most difficult health care decisions.
If you do not prepare this directive, then your attorney (if you have appointed one) or your closest family members may well be faced with making very difficult health care decisions for you. Even if you have expressed your wishes to them, clearly there is no legal requirement for them to be followed, and your family or attorney may well carry lifelong guilt from any decision they make.
Show your family how much you care now, by taking responsibility for your own end of life health care decisions.