Estate Planning is more than just making a Will. Although your Will is important, you need to consider other issues such as any Superannuation, Insurance Policies or how your assets are held (whether solely or in joint names or by a Company or family trust). You should also have an Enduring Power of Attorney and/or an Advanced Health Directive. Good estate planning helps to ensure that the right assets pass to the right people at the right time and avoids causing your loved one’s unnecessary distress.
If you cannot come to our office then we can come to you.
Whether you are just starting a family or a new relationship, have a blended family, own a company, have a self-managed superannuation fund or a family trust, we can advise you on the best way to set up your estate planning.
At CSG Law we have an extensive team of experienced lawyers willing and able to work with you in every aspect of your estate planning, no matter how simple or complex. Our firm has over 130 years’ experience in the following areas:
A Will is a legal document that sets out how you wish your assets to be distributed after your death. If you die without making a Will your assets will be distributed according to statutory and intestacy laws and this may not be in accordance with your wishes. Additionally, your estate may be put to considerable expense and delay because it will be necessary to apply to the court for an order to administer the estate. To protect your wishes, it is essential to make a valid Will that is properly prepared and witnessed.
Wills do not cover assets owned as a joint tenant (these pass automatically to the other joint tenant – usually your spouse). Also, items such as superannuation, insurance policies or assets owned under trust and company arrangements are generally not estate assets and require special attention. You should regularly review the nomination of beneficiary arrangements you have in place for your superannuation and insurance policies, particularly at the time of making a new Will.
Wills need certain formal requirements to be legally enforceable. Simple errors can render a Will invalid or cause unintended consequences, so it is important to seek legal advice even if you think your situation is straightforward. You should carefully consider who you wish to handle your affairs after your death (Executor/s). Your Will should identify the people and organisations who are to receive assets from your estate (Beneficiaries), and should include information about the form of these gifts and on what terms they are given.
In some circumstances, it may be appropriate to set up a testamentary trust to provide for these beneficiaries.
Preparing your Will
Before preparing your Will, you should consider:
- Who to appoint as Executor/s
- Who to appoint as guardian/s of your children
- What are your current assets and liabilities
- Who should receive your assets upon your death
- How you would like to provide for your children’s future
CSG Law will ensure your Will is properly drawn up and correctly signed and witnessed and also keep your Will in safe custody without charge for you if you wish.
It is a good practice to review your Will every few years or whenever there is a change in your circumstances (finances or family situation). You should be aware that marriage and divorce can make your existing Will invalid. If you have recently married, divorced, lost a partner or had children you should review your Will.
Discounts are available for qualified applicants. Please enquire at our reception when making your appointment.
Enduring Power Of Attorney And Advanced Health Directive
An Enduring Power of Attorney (EPA) is a legal document authorising another person, such as a trusted friend or relative, to act on your behalf in your affairs. This person is known as your “attorney”.
It is a convenient method of allowing someone to handle your affairs if you go overseas, take an extended holiday, suffer poor health or reach an age when you need greater assistance. Knowing you have an attorney capable of dealing with your affairs when you are absent or infirm gives you peace of mind.
An EPA is just as important as a Will. Whilst a Will operates on your death, an EPA operates during your lifetime.
Under an EPA, you may give your attorney the power to deal with all or any part of your financial, personal and health matters.
Your appointed attorney:-
- Must be over 18 years of age;
- Must not be your health care provider (for example, your doctor);
- Must not be bankrupt;
- Must not be a paid carer (receiving a carer’s pension does not stop a person from being an attorney).
It is important to choose someone you trust, who is capable of looking after your affairs. You can appoint more than one attorney.
If you lose your ability to make decisions and do not have an EPA, your financial affairs may be handled by a government department or institutional trustee for a fee. Your personal health matters may be handled by someone close to you, for example, your spouse.
An Advanced Health Directive (AHD) is a document that includes specific instructions about a person’s future health care if you are unable to make your own decisions.
Anyone who is over the age of 18 years of age and is capable of understanding the nature and consequences of their health care decisions and the nature and effect of the AHD can generally make an AHD.
A direction in an AHD operates only while you are unable to make health care decisions yourself.
You should consider making an AHD to avoid problems that may arise when you cannot express your wishes because you are injured, in a coma or unwell.
When your family or friends are aware of your wishes and attitudes to healthcare and medical treatment, they are more likely to be comfortable that they have made the right decision for you.
Deceased Estate Administration
Given the significant legal obligations and responsibilities expected of a personal representative of an Estate, it is imperative that you get the right advice as early as possible.
The team at CSG Law has extensive experience in all aspects of Estate administration and can assist by managing the administration of an estate of a deceased person in an efficient, professional and caring manner.
Administering an Estate is an important legal obligation. A person will become responsible for the administration of an Estate if they are nominated by the deceased person as their Executor in the Will.
In the absence of an express or implied provision for an Executor by the deceased, a Court will appoint an administrator, typically the closest surviving next of kin.
Role of the Executor
If you have been appointed the Executor or administrator of a deceased person’s Estate, you have a number of legal rights and obligations. The role of Executor consists of the following:
- Calling in the assets of the Estate;
- Paying the debts of the Estate; and
- Ensuring that all of the assets are properly secured and insured. Insurance companies and other institutions should be advised of the passing of the deceased
- Ascertaining if the deceased had any life insurance policies
- Ascertaining if the deceased had an interest in any businesses, and to maintain these interests until they can be appropriately dealt with
- Organising the taxation affairs of the deceased and the deceased’s Estate
- Keeping records – the Executor should keep very detailed records of all dealings with the Estate
- Distributing the residue of the Estate, after payment of all expenses, to those who are entitled as beneficiaries under the Will
One of the first duties of the Executor of an Estate is to arrange the funeral.
The personal representative has the authority to make all decisions regarding the funeral to the exclusion of the next of kin. However in most instances, close family or friends attend to the funeral arrangements.
Any costs incurred for the funeral are payable as a first charge against the estate and take priority over any other claim. The arrangements of the funeral must be appropriate, bearing in mind the financial capacity of the Estate of the deceased.
Dependants of the Deceased
If the deceased has any dependants then arrangements must be made for their adequate and appropriate care and welfare.
If the deceased lived alone, the Executor must take reasonable steps to ensure the safe custody of the deceased’s home, motor vehicle, and possessions.
Administration of the Estate
The Executor should attend to the following as soon as possible after the deceased has passed away:
- Obtain a copy of the death certificate
- Obtain a copy of the last Will of the deceased
- Ascertain all of the assets and liabilities of the deceased. There may need to be a consultation with the deceased’s accountant, legal representatives and financial advisors to fully ascertain the extent of the deceased’s Estate
- Make applications to the Court for a grant of probate or representation. Specific legal advice should be sought as to whether a grant of probate or grant of representation is required and the appropriate application that should be made
- Dealing with the assets of the Estate. Once the assets of the Estate of the deceased have been ascertained the Executor will then determine whether the assets are to be distributed directly to the beneficiaries, or are to be sold and the proceeds distributed. Again legal and financial advice should be sought before the assets are dealt with.
Liability of the Executor
The appointment as a personal representative of an Estate has significant obligations, personal risks and potential liabilities.
Executors owe a duty of care to the beneficiaries of the estate to exercise the same degree of care as would an ordinary prudent business person. The Executor could be personally liable for a breach of this duty.
Deceased Estate Disputes (Contesting A Will)
The death of a family member is a difficult and emotional time. If you then find that you have not been adequately provided for in the Will of the deceased then contesting the Will can make life even more difficult. This is also the case if you are an Executor or beneficiary of a Will and the Will is being challenged by a family member. At CSG Law we can advise you as to your entitlement and guide you through the process.
The law provides that if a person is dissatisfied with the terms of a Will of a deceased person and considers that he or she has not been adequately provided for from the estate they may apply to the Court for an order for provision out of the estate. This is known as a Family Provision Application. The term “adequate provision” is relative to the circumstances of each particular matter and a significant factor is the size of the estate.
In Queensland a Family Provision Application can only be made by certain persons specified in the legislation – a spouse (including de facto spouse), child (including stepchild or adopted child) or dependant (either a parent of the deceased or of a child of the deceased under 18, or a person under 18). A person will be a “dependant” if he or she was being wholly or substantially maintained or supported by the deceased at the time of death.
When considering whether an applicant has any prospects of pursuing a Family Provision Application the first question is whether the applicant has been left without adequate provision for his or her proper maintenance and support by the deceased. Should the answer to this question be ‘yes’ it is then necessary to consider what provision should be made for the person out of the estate. This two-step approach is generally followed by the Courts throughout Australia, including Queensland.
There are a number of factors taken into account by the courts to determine whether a particular applicant has been left without adequate provision, and if so what provision should be made. In most cases, it is primarily a matter of estimating the person’s “need” and also his or her “moral” claim. This requires a detailed consideration of matters such as the history of the relationship between the applicant and the deceased and the applicant’s financial circumstances in comparison to the financial circumstances of the estate and all other beneficiaries and/or other applicants. The Courts will also consider whether there is any moral reason why the applicant should not be entitled to any, or any greater, provision out of the estate.
There are time limits for bringing a Family Provision Application, and it is, therefore, important to obtain legal advice as soon as possible if you are unsatisfied with the terms of a Will or if you are uncertain about your legal entitlements.
Our Lawyers have many years of experience in handling a wide range of disputes and other estate matters. We can determine if you are entitled to make a claim and let you know what the outcome is likely to be. Our policy is to negotiate the best outcome for you on a cost-effective basis. We are able to take a case on a No Win – No Fee* basis in most matters relating to Will disputes (conditions apply).