Australia has an aging population, and our clients are increasingly seeking advice and assistance to safeguard their interests, protect their assets and ensure that their wishes will be carried out into the future.
We specialise in looking after the present interests and future wishes of older Australians and can assist with:
- Wills and Estate Planning
- Probate and Letters of Administration
- Estate Disputes & Family provision claims
- Powers of Attorney
- Enduring Guardianship
- Applications for Guardianship and Financial Management
- Retirement Village Contracts
Wills & Estate Planning
A valid Will appoints a trusted executor to handle your legal affairs when you die and directs how your assets should be distributed. Effective estate planning however involves more than just making a Will, and making a Will requires considerations beyond appointing executors and nominating your beneficiaries.
A person making a Will must be mentally competent and the Will must be correctly signed and witnessed. Engaging a solicitor to draft your Will ensures that these formal requirements are met and can help minimise potential disputes and claims on your estate. You may even need a strategy to protect vulnerable beneficiaries, safeguard assets from third parties, and provide flexibility in the distribution of your assets to achieve more optimal tax outcomes. A testamentary trust is a more complex Will that creates one or more trusts after the testator dies and may help with these issues. Talking to a lawyer can help tailor your Will to address these important considerations.
Once in place, you should review your Will regularly and particularly after major events such as marriage, divorce or separation, the sale or purchase of real estate or a business, the receiving of an inheritance or the death of a beneficiary or executor.
After a person dies, someone needs to look after their assets and administer the estate. That person may also need to deal with disputes and family provision claims which can be very difficult, particularly when dealing with the loss of a loved one.
Executors and administrators have significant legal responsibilities. They must ensure they are protected from liability in the event of a claim against the estate and 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, and the potential for a family provision claim to be made. Obtaining professional advice and guidance in these areas is essential.
Probate and Letters of Administration
An executor may need to apply for Probate in 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 depends on the size of the estate, the type of assets and how they are held. Most financial institutions require a grant of probate to release funds over a specified amount. Probate is also required to transfer real estate that is not jointly held.
A grant of Letters of Administration appoints the applicant administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
Estate Disputes & Family provision claims
A family provision claim may be made by an eligible person seeking a share or greater share from an estate. Claimants must prove that the deceased failed to make adequate provision for their proper maintenance, education and advancement in life.
Eligible persons usually include a spouse, former spouse, de facto partner, child of the deceased, or certain individuals who were in a close personal relationship with the deceased or who were dependent on the deceased at the time of death. Strict timeframes apply for making claims, so it is important to obtain legal advice promptly.
An executor may need to defend a family provision claim made against the estate. The executor has a primary duty to uphold the provisions of a Will however must also ensure that estate assets are preserved and may need to consider a justified claim that is likely to succeed.
What is a Power of Attorney?
A Power of Attorney is a legal document that appoints and authorises somebody to look after your legal and financial affairs on a temporary basis for convenience (such as while you are travelling), or more frequently if you need additional help due to age, illness or incapacity.
If you wish to appoint somebody to look after your affairs indefinitely if you become mentally incapacitated, an Enduring Power of Attorney must be prepared while you have mental capacity. While a Power of Attorney ceases to operate after a person loses mental capacity, an Enduring Power of Attorney will not.
Each type of Power of Attorney serves a useful but different purpose, and we recommend you contact us to discuss your circumstances so we can advise you as to the most appropriate for your needs.
Appointment of Enduring Guardianship
Appointing an enduring guardian is different from appointing an attorney.
An enduring guardian can make a range of lifestyle decisions such as where you live and what health care and other services are provided to you. If you lose capacity to make these decisions for yourself at some time in the future, an enduring guardian can step in and make them for you upon production of a medical certificate.
You can appoint more than one guardian but remember, guardians may need to make confronting decisions in challenging and emotional circumstances, so those you appoint should understand your values and morals and be capable of making decisions that reflect your wishes.
Applications for Guardianship and Financial Management
If you are concerned for the welfare of a relative and their affairs, we can assist with the appointment of an appropriate person to act on their behalf and in their best interests.
Retirement Village Contracts
If you are considering retirement village living you need to be sure the arrangements are suited to your specific needs and that you are clear about your rights and responsibilities under the contract.
Retirement villages in New South Wales must be registered and village operators must provide prospective residents with certain disclosure material before entering into a contract.
Entering into a retirement village is a long-term decision and many residents have been caught out, being unaware of their financial commitment, particularly with respect to high exit fees. We have assisted many retirees to make informed decisions and enter contracts with confidence. We will review your contract, flag any potential issues and ensure you are aware of your rights and obligations. If you choose, we can also discuss the terms of the contract with your family members.
We have considerable experience in assisting clients with their estate planning and other important life decisions. We will work with you to explain your options to ensure that your plans for the unforeseen and the inevitable are accurately reflected in legally valid documents.