Wills & Estates
Why do I Need a Will?
Every adult should make a Will and review it regularly.
A Will is a legal document recording your wishes for the distribution of your property after you die. Your Will should appoint one or more executors who will be responsible for administering your estate, and direct how your assets are to be divided between your beneficiaries. This might be a detailed list of specific items and beneficiaries, or more commonly, a simple division of your estate in percentages.
If you are married with children, your Will might simply state that your spouse receives your entire estate unless they predecease you, in which case your children are to inherit in equal shares. Your Will may become more complex if you are part of a blended family, as you may need to consider how you wish to provide for any children from a previous relationship or how your current partner/spouse would like to provide for their children. If you have complicated family relationships, or significant assets and/or business interests, the drafting of your Will may be more multi-faceted. We can help you prepare a Will that is tailored to your circumstances.
What if I die without a Will?
Dying without a Will is referred to as dying ‘intestate’. In such cases, the law sets out a formula for dividing the estate between your next of kin. While this prescribed formula may reflect what you would choose to do with your property anyway, it may not. For example, you may want your spouse to inherit the whole of your estate, rather than having to sell assets to divide the estate with your children. Conversely, you may wish your spouse to receive a smaller proportion than your children, especially if you have only been married for a short period and you have children from another relationship. These are questions that are personal to you, and a Will is an instrument that allows you to formalise these decisions.
Dying intestate also makes administering the estate of a deceased loved one more difficult, expensive, and time-consuming.
Powers of Attorney
A Power of Attorney is a legal document that allows you to appoint someone to make certain decisions on your behalf. This person is known as your attorney and should be someone you trust and who will respect your wishes.
You can only make a Power of Attorney if you have legal capacity. This means you must understand the nature and effect of the document you are signing and the consequences of appointing someone as your attorney.
In Queensland, different types of Powers of Attorney cover different circumstances and situations. It is important to understand the options available so you can choose what is right for you. You should consider what powers your attorney will need, such as the power to make financial and/or medical decisions, and whether you want the power to be limited to specific events and/or times, or to be enduring (in which case the appointment will continue if you lose capacity).
We can explain how the different powers of attorney operate so you can make an informed decision.
Advance Health Care Directive
An Advance Health Care Directive is a document that allows you to specify your wishes for medical treatment if you become unable to make decisions for yourself. You can specify treatments that you do not want to receive, including whether you want life-sustaining treatment or palliative care. You can only make an Advance Health Care Directive if you have the necessary mental capacity, and the document must be witnessed by a doctor or other authorised witness.
Administering an Estate
Estate administration is the process of managing and distributing the assets of a deceased person. This may require an executor to apply to the Supreme Court for a Grant of Probate which provides the necessary authority for that person to deal with the estate and distribute the assets to the nominated beneficiaries. If a person dies intestate, usually, the next of kin or other family member will need to apply to the Supreme Court for Letters of Administration before dealing with the estate.
When administering an estate, the executor or administrator must identify and value the deceased person’s assets, pay any taxes and other debts, and distribute the assets of the estate according to the Will or the laws of intestacy.
Administering an estate can be an onerous task and is often undertaken with the guidance of a solicitor.
If you need assistance, email ja***@ti**********.com or call 07 3848 6861.