Estate Planning


At O’Brien Winter Partners, our experienced team is able to assist you in preparing for your future and ensure your family is taken care of should you pass away. Our team prides itself on the attention to detail given to you and your family’s needs, and the legal documents we prepare on your behalf. We are able to provide services for making and changing a will, applying for a Grant of Probate or Letters of Administration as well as attending to Power of Attorney and Enduring Guardianship. Our solicitors understand that estate planning can often be a difficult topic to discuss and take a sensitive approach to each individual matter.

If a loved one has passed away, O’Brien Winter Partners is able to assist in attending to the estate and disbursing assets. This may include simply following the instructions of a Will or applying to the New South Wales Supreme Court for a grant of Probate or Letters of Administration.

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At O’Brien Winter Partners we offer a set fee for our legal services offered to both single clients and couples. Fees associated with an application for a grant of Probate or Letters of Administration will depend on the size of the estate being attended to. Court fees are also required to be paid and can be found on the New South Wales Court website

Please call our office on (02) 4949 2000 or email admin@owplaw.com.au to find out more information and to make an appointment with one of our experienced solicitors.

Wills

A Will is a legal document that contains instructions regarding how your estate should be disbursed after you die. A Will can deal with all the assets in your estate including property, finances and personal belongings. You may also include any specific directions, such as if you wish to be buried or cremated. We recommend that everyone over the age of 18 years makes a Will.

What should I consider when preparing my will?

When preparing your will you should consider:

  • What your assets are: Property, superannuation, bank accounts and so on.
  • Who your beneficiaries are: The people you leave your assets to.
  • Who your executor will be: The person who carries out your Will’s instructions.
  • Who will look after your children: If they are under 18 or unable to care for themselves.
  • Whether you want to leave anyone out of your will.
  • What your funeral arrangements are.
  • What happens if your beneficiaries die before you do.
  • Whether you want your legal advisors to prepare an Enduring Power of Attorney.

Can I change my Will?

We recommend that you regularly update your Will when your circumstances change. For example, if you get married, your relationship breaks down, you have children, or you acquire new property or a significant amount of money.

What is an executor?

An executor is the person, or people, you appoint in your Will to administer your estate after you pass away. The executor must follow your intentions as outlined in your Will. When considering who to appoint as your executor, it is important to think about someone whom you think is trustworthy, reliable and can be independent if a dispute arises.

Can I write my own Will?

An individual is able to write their own Will; however there are legal requirements which must be met to make the Will valid. It is always recommended that advice is sought from a solicitor to ensure your intentions are clearly set out and legal requirements are met.

What happens if I don’t clearly outline my wishes?

If you die without a Will (intestate), your assets are divided up according to a formula which is set by the government. Your family then receive a percentage of your estate that the government determines is reasonable. If you have no surviving relatives at the time of your death, the State government receives your money.

If I have moved to NSW from another state or from overseas and made a Will where I previously lived, should I make a new Will?

Other states within Australia and other countries have different laws in regards to Wills. Due to these differences, we recommend that you have a Will made in New South Wales to cover all of your assets.

Power of Attorney

A Power of Attorney is a legal document where you appoint a person, known as your Attorney, to manage your financial and particular legal affairs. An Attorney cannot make decisions about your medical treatment or lifestyle. The function of this document ends when you die.

What is the difference between a general Power of Attorney and an Enduring Power of Attorney?

A general Power of Attorney will no longer have any effect in the event that you lose mental capacity. The Enduring Power of Attorney will continue to have effect even if you do lose mental capacity. If you do lose mental capacity and do not have an existing Power of Attorney, an application may be made to the Guardianship Tribunal or Supreme Court to have an Attorney appointed on your behalf.

When can Attorneys manage my affairs?

The Power of Attorney may come into effect by choice or if you lose the ability to make decisions for yourself due to illness. A temporary Attorney may be appointed to manage your affairs in circumstances such as while you are overseas.

Who can I appoint as my Attorney?

You must appoint a person 18 years of age or over to be your Attorney. When considering who to choose we recommend you take into account a person’s ability and skills to manage your financial and legal affairs and someone you trust to honestly act in accordance with your wishes. Your Attorney must also accept their appointment.

Will I lose control of my affairs once I have appointed an Attorney?

No. The Power of Attorney is an authority for your Attorney to manage your affairs in accordance with your instructions.

Can I cancel a Power of Attorney?

You can cancel (or revoke) your Attorney at any time as long as you have capacity. It is important that a letter is sent to your Attorney to advise them that their appointment has been revoked.

Enduring Guardian

An Enduring Guardian is a person you appoint to act on your behalf and make decisions regarding your lifestyle, issues relating to your health and accommodation. The appointment comes into effect when you lose capacity and are no longer to make decisions for yourself. Your Enduring Guardian cannot make any decisions regarding your Will or consent to medical treatment that you have refused.

Who can I appoint as my Enduring Guardian?

Similar to the Power of Attorney, it is important you choose someone over the age of 18 years whom you trust and think is reliable and able to act in your best interest. Your Enduring Guardian must accept their appointment.

Can I cancel an Enduring Guardian?

You can cancel (or revoke) your Enduring Guardian at any time as long as you have capacity. It is important that a letter is sent to your Guardian to advise them that their appointment has been revoked.

Probate

Probate is a process whereby the last Will of a deceased person is lodged with the New South Wales Court. The Court declares the Will to be valid and allows the Executor to administer the estate according to the laws of New South Wales and disburse the assets amongst the beneficiaries identified in the Will. A grant of Probate is often required to transfer or sell real estate and other assets, access bank accounts, superannuation funds and life insurance policies, and pursue claims and receive compensation on the deceased’s behalf.

Who can make an application for probate?

The Executor (or Executors) of the will is the only person able to make an application for the grant of Probate as they are the person named in the Will to administer the estate. The Executor must prove to the Court they are who they say they are, that it was the intention of the deceased that the Executor administer the estate and that they will administer the estate in accordance with the Will.

What information is required to make an application for probate?

The court requires the original death certificate of the deceased, details regarding all assets (property, money, superannuation and other personal belongings of value) and liabilities (mortgaged, loans, outstanding bills and other debt) within the estate of the deceased, and details of the Executor and all beneficiaries.

Letters of Administration

Letters of Administration is similar to a grant of probate but with two key differences. The first difference is the person died without a Will and an application needs to be lodged with the New South Wales Supreme Court to have an Administrator appointed, and determine who the beneficiaries are and how much the beneficiaries will inherit. The second difference is a person died with a Will but the Executor is no longer alive or has renounced. An application is made to the Supreme Court to have an Administrator appointed to step into the position of the Executor.

What is an Administrator?

An Administrator acts in the same way as an Executor and administers the estate in accordance with the laws of New South Wales and the grant of Letters of Administration.

What information is needed to make an application?

The same information regarding assets and liabilities is required that is included in an application for probate. In addition to this, your must prove to the court that reasonable efforts have been made to locate the last Will of the deceased. For example, providing with Court with letters from other law firms, financial institutions and the NSW Births, Death and Marriages Will Registry stating they do not hold the Will of the deceased.

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