A Will or Testament is a legal document, formally declaring how your assets are to be distributed to family, dependants, friends or organsiations upon your death.
Anyone who is over 18 years of age or under 18 and married, or has obtained a Court Order to make a Will, is qualified to make a Will.
Wills are required to be in writing, signed by the testator or testatrix in the presence of two independent witnesses present at the time, dated at the time of being signed by all parties and is to be made by a person of their own free will.
Having a Will is the most effective way to distribute an estate, which makes things easier for your family and beneficiaries in what is always a tough time of transition.
Should you become deceased without a Will (intestate) your estate may be divided according to a Government formula – a formula that may not reflect your wishes and which may cause undue hardship, cost and delay for your family. In situations where you have no living relatives closer than cousins, your estate will go to the State Government.
Where a person dies without a legal will, the law determines who will receive the estate. In this instance, letters of administration need to be obtained from the Supreme Court, which will allow the assets and liabilities of the estate to be dealt with.
Letters of administration authorise a person (called an administrator) to administer the deceased’s estate and distribute assets.
Our lawyers are committed to working with you to address your concerns, assess relevant issues and give you sensible and practical advice regarding your legal affairs.
We can help you draft your Will or make minor additions or amendments to your Will (‘known as a Codicil’) and we encourage you to keep your Will up to date by reviewing it periodically.
City Legal Solicitor’s wills, probate & estates practice is professional and cost effective. We appreciate the importance of maintaining family relationships and in the case of will disputes will attempt to resolve the dispute without resorting to legal proceedings unless all other dispute resolution means have been explored. We recommend to our clients that disputes can be settled at or before mediation and our lawyers explore dispute resolution options vividly in an attempt to minimise the costs and strain on family relationships associated with such emotional disputes of this nature.
DEFINITIONS:
- The person who makes the will is called the TESTATOR (Male) or TESTATRIX (Female).
- The person who represents you after your death is called the Executor/Executrix.
- The executor applies to the NSW Supreme Court for PROBATE which allows them to deal with the assets in the estate.
- A CODICIL is an amendment or addition to a valid Will
Who can contest a Will?
There are often many good reasons why a Will ought to be contested.
The law recognises an individual’s right to choose who will inherit his or her property. The law in most states allows family members, de facto and same-sex partners, or anyone else who can generally evidence that they were financially dependent on the deceased, to contest a will that is unfair.
A will can also be contested if it can be shown that the deceased did not have the mental capacity to understand what they were signing or if they signed a will that did not reflect their wishes under the influence by another person.
If you are named or appointed the executor of an estate and a will is being contested, you may receive notice by a claimant of their intentions. In this situation we urge you seek prompt legal advice and that is where City legal Solicitors may assist.
Our lawyers will assist you and provide advice in relation to relevant issues and the legal options available in each particular case.
What if no Will is existent?
If a valid Will has not been left, our lawyers can assist you with applying for a ‘Letter of Administration’ to the Supreme Court of New South Wales. In these circumstances there is legislation that details how an estate may be distributed and by whom. The Supreme Court can appoint an administrator to distribute the estate.
What if you expected to be a beneficiary under a Will and have not been provided for?
If you expected to be a beneficiary of a Will whether you are a child or partner of the deceased but have not been provided for, our lawyers can advise you in relation to any possible claim you may have against the distribution of the estate under the Family Provision Act.
We can assist you contest a Will and put together a case setting out the reasons in accordance with evidence as to why you should be considered a beneficiary of the deceased estate.
POWERS OF ATTORNEY
A Power of Attorney is a document by which one person (‘the Principal’) appoints another to be their attorney and is an instrument that generally only deals with financial matters. An attorney has powers to sign documents and make financial decisions for the Principal.
There are many reasons why you may require a Power of Attorney. You may wish to be free of the demands of financial paperwork and record keeping or you may be travelling overseas for whatever reason and require someone to handle your day to day affairs in your absence.
Conditions and limitations can be incorporated in the document if required, and if the Power is used to sign documents for property transactions, it must be registered with the Department of Lands.
ENDURING POWER OF ATTORNEY
A Power of Attorney may be drafted in a way so the instrument is effective when the Principal has lost the mental capacity to manage their affairs. The Power is known as an “Enduring Power of Attorney” because it endures in efficacy despite the Principal’s mental capacity being diminished. A certificate of legal advice must be completed, and the attorney must accept the appointment in writing.
The risk of dementia of the aging is one of many reasons for an Enduring Power. One’s mental capacity can also be affected by brain damage from an accident or other diseases.
Attorneys are required to act in the best interests of the Principal, putting the Principal’s interests ahead of their own. The Principal’s funds should be separated, and any payment to an Attorney, such as reimbursement for medicines, should be carefully documented.
ENDURING GUARDIANSHIP
An Enduring Guardianship is a document where an Enduring Guardian (‘Guardian’) is appointed by an Appointor and is given the power to deal with health and lifestyle decisions. More than one Guardian may be appointed.
A Guardianship only operates if the Appointor has lost their mental capacity. A Guardian can give consents to medical & dental treatment, decide what health care the Appointor needs, decide where the Appointor will reside, make decisions in relation to whether the Appointor can work and can stop the artificial prolongation of life.
You may limit your guardian’s authority and you may also specify any considerations that you would like your guardian to take account of when exercising their powers.
City Legal Solicitors can assist in drafting important estate planning documents including:-
- Wills
- Enduring Powers of Attorney
- Appointments of Enduring Guardianship.
We can offer you a personal legal package for you to secure your future which comprises a Will, an Enduring Power of Attorney and an Enduring Guardianship.
PROBATE
If the deceased person has a legal will, it is usually necessary to obtain a grant of probate of the will from the Supreme Court so that the executor of the will can deal with the assets and liabilities of the estate.
When a person becomes deceased, you may need to gain access to bank accounts and superannuation funds, persue legal action and/or receive compensation on behalf of the deceased person or transfer real estate and other assets.
A grant of probate from the Supreme Court is the legal instrument that allows the executor to administer the estate according to probate law and to distribute assets to the beneficiaries named in the will in accordance with the terms of the will.
If you want protection against claims on your estate, or you want to challenge a will, or make an application for Probate we at City legal Solicitors can assist you. We acknowledge that such matters can be delicate and our lawyers are determined to look for the right legal solution for you. For our friendly professional assistance, please contact our lawyers at City Legal Solicitors.
