Wills and Estate planning

An Estate plan involves a number of legal documents that detail how you want to be looked after if something happens to you (i.e. if you become incapacitated later in life). It also outlines how your Estate and assets will be protected while you are alive and then distributed after your death.

The following can be included in your Estate plan:

• Last Will and Testament
• Substitute decision-maker
• Advanced Care Directives
• An Enduring Power of Attorney
• Trusts, including testamentary trusts

Yes, you can organise your own Estate planning. However, since the process can be very complicated, it is best to speak to an Estate planning lawyer. This will ensure your wishes are as clear as possible and make decisions easier for your family.

A Will is a legal document that outlines how your assets will be distributed after your death, whereas ‘Estate planning’ is a broader term and a longer process that includes Enduring Power of Attorney, Advanced Care Directives and more.

A Will is a document detailing how a person’s property is to be distributed after their death. In addition, a Will also appoints someone who will look after the administration of the terms of the Will.

There are numerous benefits to making a Will, which include:

• Being able to direct how your real property and personal property is distributed, including gifts to:
  • Family and friends
  • Charities
  • Other persons

• Avoiding additional expense, difficulty, delay and possible anguish for your family and loved ones when it comes to the resolution of your Estate. 

If you own a home or have any significant assets under your name, it is essential to create a Will so your family is not impacted by disputes following your death.

Although a Will does not need to be drawn up by a lawyer, the law concerning Wills and Estates has many pitfalls and it is therefore highly desirable to obtain legal advice, particularly with regard to who might be entitled to challenge your Will.

When making your Will, you should appoint an executor to handle your affairs after you die. You can name more than one executor and you can choose anyone to be the executor. It does not necessarily have to be a family member.

If a person dies without having made a Will, that person is said to have died ‘intestate’ and their property is distributed according to a legislative formula in their state, regardless of what the property owner’s wishes might be.

Where a person dies intestate, the next of kin are required to take the appropriate action for the Estate to be administered, which in most cases will require an application to the Supreme Court for Letters of Administration.

Yes, as long as you make proper provision for your spouse and children (including ex-nuptial children); otherwise, they could challenge your Will.

You should alter your Will if your circumstances change in any way. There are three ways of changing your Will:

• By making a codicil (a separate document in which you make minor amendments)
• By revoking the Will it or cancelling it
• By revocation and re-publication of an earlier Will

Wills should be regularly reviewed to ensure that they reflect the current wishes of the maker. It is recommended that Wills be periodically reviewed every 2 – 5 years or upon the happening of a significant event in the person’s life for example marriage and death of a beneficiary or executor.

At Probatum Lawyers, we can:

• Advise you on the adequate provision for your spouse and children
  • And whether or not they may have a possible claim against your Estate
• Make sure your wishes are correctly documented
• Make sure your Will is properly drawn, signed and witnessed
• Keep your new Will in safe custody
• Explain and answer any other Wills and estate planning questions

Power of Attorney is a legal document that appoints a person, the attorney, to act on behalf of another person, the principal, with regard to managing that person’s property. This is an ordinary Power of Attorney, which ceases to have effect if the principal loses the capability to make financial decisions.

Unlike an ordinary Power of Attorney, the Enduring Power of Attorney gives the attorney the power to act on your behalf even if you become mentally or physically incapable of making financial decisions.

An Enduring Power of Attorney must be witnessed by a prescribed person. A lawyer is a prescribed person.

The Enduring Power of Attorney is only effective once the attorney has accepted the appointment. A statement of acceptance in the appropriate form needs to be signed by the attorney.

• A Power of Attorney is particularly useful if you are going overseas or if you require hospitalisation.
• It allows someone you trust to act on your behalf in your absence.
• You can give a person control of all your business affairs by giving the authority to that person to act on your behalf and to do anything that you may lawfully do.

You can cancel at any time as long as you are mentally capable. If you wish to stop a Power of Attorney you should sign a document called a “Revocation of Power of Attorney”.