Wills & Estate Planning

We can all take steps to simplify the management of our financial affairs, predetermine the type of health care we are comfortable with, and ensure our hard-earned assets are structured to our advantage as we age.

Estate planning goes beyond drafting a Will – it includes:

  • Planning for the unforeseen – ensuring your legal and financial affairs can be dealt with by somebody you trust if you are away, become ill, or incapacitated.
  • Assessing the value of assets and how they will be taxed in your estate.
  • Protecting assets and vulnerable beneficiaries by considering the benefits of testamentary and other trusts.
  • Succession planning – ensuring arrangements are in place for business and company interests as you retire or when you die.
  • Advice regarding the possibility of third-party claims against the estate.

Estate planning is an active process of re-evaluating the estate when your life circumstances change such as marriage or divorce, changes in the value of assets, superannuation, or insurance policies, buying or selling a business, or retiring.

We can walk you through the process of making a Will for the first time or revising your current Will and structuring your estate for maximum benefit.

Powers of Attorney

A Power of Attorney is a document whereby one person (the donor) grants another person (the donee) the authority to make legal and financial decisions on their behalf. A Power of Attorney can be used in several ways – from having somebody look after your affairs while travelling, to times of extended illness.

An Enduring Power of Attorney takes this a step further – the donee may continue to manage the donor’s affairs once he or she is found to have diminished mental capacity due to injury or illness. This arrangement can remain in place as long as the donor is alive.

To grant a Power of Attorney, the donor must be capable of understanding the nature and effect of the document being signed. Therefore it is important to put in place a Power of Attorney while you have capacity to do so.

Advance Care Planning

Advance care planning considers your values and wishes concerning your future health care needs. You can document directions about these matters now, so that your wishes are respected if you become incapacitated and cannot convey these directions yourself. Directions can include the type of medical treatment you consent to or refuse, and your values and preferences that should be considered regarding your future health care needs.

Are you the executor of a Will?

If you have been chosen by a family member or friend to be the executor of their Will this means that you have been given the legal responsibility of managing their estate according to the terms of the Will and protecting their assets under the various laws and rules that govern estate administration in Australia.

Your duties as an executor may include:

  • organising the funeral and notices
  • locating the Will
  • obtaining a copy of the Death Certificate
  • making sure property and assets are safe and secure
  • applying for Probate
  • paying insurance policies, debts, and taxes
  • collecting debts owed, and monies belonging to the deceased from financial institutions and insurance companies
  • lodging tax returns for the deceased and for the estate
  • selling properties and assets
  • reporting to beneficiaries
  • distributing the proceeds of the estate to beneficiaries
  • setting up trusts

Do I need a Lawyer?

Being an executor can be overwhelming, particularly when you are grieving, however an experienced estate lawyer can guide you through the process of obtaining probate and administering the estate.

Estates vary and executor’s duties can be complicated, so it is generally wise to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the executors.

What if I’m not up to the job?

Just because you have been named an executor doesn’t mean you have to accept the responsibility. If there is another executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.

What is Probate?

Probate is a grant made by a Court that recognises the validity of a Will and permits the executors to carry out their duties in relation to the estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.

What if there is no Will?

Dying without a Will is referred to as intestacy and the law determines how assets will be distributed after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.

The rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin. Although this formula is designed to reflect society’s expectations it may not necessarily consider the real wishes of the deceased nor his or her unique circumstances, which is why having a Will in place is so important.

Retirement Living

A retirement village is typically a community-style development offering accommodation and services to retirees and the older generation. Retirement villages range in the level of care and services they provide and there are various legal structures through which an interest in a retirement village may be held. It is important to get legal advice on the type of structure you are entering so that you are comfortable with your decision.

Farm and business succession planning

Nobody likes to think about it too much, but inevitably one day you will have to leave your farm or business, whether by selling up, retiring, or for health reasons. It is important to have a succession plan in place that makes the transition easy not only for yourself but for your family or employees.

A farm succession plan is a strategy setting out the processes that will be implemented to sustain the family farming enterprise, so it can be passed on to future generations. The focus is on the profitability and longevity of the farm, in consideration of the needs of family members.

The diversity of a farming enterprise amidst the dynamics of the family unit can raise challenging and complex issues. A successful plan usually needs to consider all family members as it will consider not only provisions for your retirement income but also the plans, aptitudes and existing assets of younger generations.

Similarly, business succession planning involves strategies and recommended legal structures, insurances, and agreements to protect assets, mitigate risk and deal with contingencies such as the retirement or unexpected death or illness of a key business partner.

Whether you have a farming enterprise or other business, we can work with you to ensure strategies are in place to support its viability and ensure a sustainable succession plan and workable arrangements for remaining / incoming members.

If you need any assistance, contact one of our Townsville estate lawyers at [email protected] or call 07 4724 1152 for a no-obligation discussion and for expert legal advice.