An effective estate plan may require more than preparing a valid Will and it is important to consider various aspects of your life, financial and personal circumstances when planning your estate.

Making A Will

A valid Will determines who should benefit from your estate when you die (your beneficiaries) and who will be responsible for administering it (your executors / trustees). A Will can be simple or complex, may appoint guardians for minor children and can provide directions for funeral arrangements.

Anyone over 18 years of age with legal capacity can make a Will. Legal capacity means you are of sound mind and understand what you are doing.

A well-drafted Will can relieve the stress and anxiety of your loved ones when you die and will help to ensure that:

• your executor understands how you would like your affairs managed
• you are providing for the right people when you die
• your assets will be distributed as you instruct
• disagreements amongst your beneficiaries are avoided or minimised
• the potential for a claim against your estate is minimised

The complexity of your Will is generally determined by your circumstances, family structure, assets, intended beneficiaries and any trusts which you have in place, or wish to create. A testamentary trust is a more complex Will that creates a trust or trusts after you die. The trust could assist in safeguarding assets from third-party creditors and protecting at-risk beneficiaries.

As your circumstances change throughout the course of your life, your Will should be updated to consider these changes, and to ensure that it continues to reflect your testamentary wishes.

” A guardian acts as a substitute decision-maker and may organise suitable living arrangements, consent to medical, other health and dental treatment and in some circumstances refuse such treatments “

Enduring Guardian

An appointment of enduring guardian appoints a person to make lifestyle, health and certain medical decisions on your behalf if you lack capacity to make those decisions yourself. A guardian acts as a substitute decision-maker at that time and may organise suitable living arrangements, consent to medical, other health and dental treatment and in some circumstances (if specified by you) refuse such treatments.

Executors and administrators are the legal personal representatives of a deceased person and have significant legal responsibilities. They must ensure they are protected from potential liability in the event of a claim against the estate.

In addition to the practical matters required immediately after a person dies, executors and administrators may need to identify, secure, and protect estate assets, pay estate debts, and distribute the proceeds of the estate in accordance with the Will or the laws of intestacy. During the administration process, they will often deal with accountants, financial institutions, real estate agents and brokers, usually under the guidance of an estate lawyer.

Executors and administrators often need to consider matters outside their area of expertise, such as the tax implications on the sale or transfer of assets, the order of payment of debts, the preparation of estate tax returns and the potential for a family provision claim to be made. Obtaining professional advice and guidance in these areas is essential.

An executor may need to apply for a grant of Probate through the Supreme Court before administering an estate. The granting of Probate ‘proves’ the Will of the deceased and authorises the executor to deal with the estate. The requirement to obtain probate usually depends on the size of the estate, the nature of estate assets and how they are held. Most financial institutions will require a grant of probate to release funds over a specified amount.

Once Probate is granted, the executor may deal with the assets and commence administering the estate in accordance with the Will.

We are passionate about helping clients get their estate plans in order and will work with you to ensure a tailored approach is taken, suited to your individual circumstances. We will explain options and ideas in simple terms so you can make informed decisions and feel confident about your choices.