Wills and Estates Lawyer Tweed Heads
Wills & Estates
Drafting And Updating Wills
It is thought by many that the drafting of wills is an elementary aspect of the law with people finding it difficult to spend a lot of money having a will drawn up simply due to the misconception of will kits etc which make it all too easy.
The issue is that problems with wills do not usually arise until the testator has passed which could be some time period down the track, say 20 years or more. Often it is not until this point that an issue with a will bears its ugly head and many of the will kits of today have yet to be tested in this capacity.
There is no doubt that we all have worked considerably hard for the assets we have acquired in life and you should not leave the certainty of disbursements in accordance with your will to chance.
At Save U legal we have the capacity and experience to provide you with the necessary legal advice to put your mind at ease so that when it’s time, your assets are protected and disbursed correctly in accordance with your wishes.
Save U Legal can advise on what to do to protect your assets.
A grant of probate is a legal document proving a will and authorises the executor to manage the estate of the deceased. The primary role of the executor is to determine the property of the deceased, pay out any debts and distribute the assets in accordance with the will.
Executors may also be responsible for making funeral arrangements, disposing of remains and applying for a certified copy of the death certificate. The executor will be the person dealing with banks and real estate agents in order to finalise the estate in accordance with a will. If you or a loved one has been named as an executor, our solicitors can assist with the process of probate and administration.
Letters of Administration (Intestacy)
It is becoming more common these days that a person dies without having made a will. This is known as dying intestate.
Another manner of intestacy may also be that the person has a valid will but the will does not dispose (distribute) all of the deceased’s estate. This could result from for example where all of the beneficiaries die before the testator or say where an executor has been appointed but the deceased did not give sufficient directions in their will.
In the case of intestacy, Letters of Administration (a legal order from the court) ensures that the person handling the administration of the estate is protected as they have the force of the law behind them when dealing with the deceased estate property. A grant is not always required and often banks and financial institutions will deal with an administrator provided the amount is less than $ 50,000 and evidence of death and entitlement is provided.
However if the deceased person has left real property (real estate) then a grant will be necessary.
Family Provision Claims
Essentially the administrator is responsible for much of the same actions as an executor named in a will. These duties include; making funeral arrangements, paying out debts, legal fees, and taxation liabilities and distribution of estate assets in accordance with a will or if no will in accordance with intestacy legislation.
If a loved one has died without a will and you don’t know what to do or if you have been named as an executor and don’t know what to do contact our solicitors at Save U Legal for budget conscious legal advice and representation.
Should you or a loved one be left out of a will or has received a bequest which you believe is inadequate our solicitors can assist in making a family provision claim by challenging the will.
There is specific legislation requiring that family members are adequately provided for in wills. The Succession Act 2006 (NSW) contains chapter 3, and defines a Family Provision Order as being; an order in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.
Eligible people include, current partners (married or de-facto), children (of any age), ex partners, and current dependant grandchildren or persons living with the deceased at the time of death.
Section 60 contains what the court will consider in making an order for family provision and includes such things as;
The relationship between the deceased and the applicant
Any obligations or responsibilities owed by the deceased person to the applicant or other beneficiaries
The financial position of the estate and the applicant
The personal living circumstances of the applicant.
Age of the applicant
The character and conduct of the applicant before and after the death of the deceased person.
Call us today if you have any questions or enquiries about family provision claims or to oppose someone else’s family provision claim on a loved one’s estate.
Power Of Attorney
A power of attorney is a document which grants one person (attorney, donee) with the power to deal with another (principal, donor) person’s financial affairs including money, shares and or property. It does not cover health matters as this is now covered by guardian powers.
For a person to be able to deal with another person’s real estate the document must be registered with the department of Land and Property Information.
There are two types of powers of attorney, general and enduring.
A general power of attorney is a made for a specific purpose and or time. For example you may be overseas for 6 months and you want someone to look after property or shares or pay bills out of your bank account while you are away. A general power of attorney can be executed to achieve this.
Alternatively, the most common form of Power of Attorney is an Enduring Power .This power endures beyond when a person loses their capacity, either mentally or physically. This allows for the Attorney to make those financial decisions necessary to assist the Principal in their day to day living.
An interesting point about powers of attorney is that it creates a fiduciary relationship, that is, that the person exercising the power MUST put the interests of the Principal ahead of that of the Attorney. There have been many cases where people have breached this duty with the result being they are required to account (make good) any losses suffered by the Principal for the breach.
Our solicitors can assist in drafting a Power of Attorney or Enduring Guardian and registration if necessary.