Services Wills & Estates

Estate planning refers to the preparation of documents that will govern your assets in the case of your death or incapacitation. This planning includes distribution of your property and belongings, as well as settlement of any debts and taxes. Usually, an estate plan is structured and implemented with the support of an experienced Wills & Estates lawyer.

Estate planning is a serious and significant matter, which requires careful wording and expert understanding to get right. If your Will turns out to be incorrect or invalid, it cannot be changed after your death without intervention from the Supreme Court. Additionally, the legal expenses of contesting a Will are far greater than the cost of obtaining support from a Wills & Estate lawyer early on.

Therefore, we strongly recommend seeking trusted advice from an experienced solicitor from the start. Contact the team at O’Brien Winter Partners for tailored support with estate planning.

Estate planning has many benefits, allowing you to:

• Detail exactly who you want to leave your assets to
• Choose your child’s guardian in the event of your premature death
• Prevent costly and stressful disputes between family members over who should get what
• Transfer ownership of your estate in a tax-efficient manner

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.

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

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.

You are not legally obliged to have a lawyer write your Will. However, while you are able to write your own Will, specific legal requirements must be met to make it valid.

It is always recommended that you seek advice from a solicitor to ensure your intentions are clearly set out and all legal requirements are satisfied.

If you do not make a valid Will before you die (referred to as dying intestate), your assets will be distributed according to a formula set by the government. Your family then receives a percentage of your estate, which the government has determined is reasonable. If you have no surviving relatives at the time of your death, the State government receives your money.

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.

While a general Power of Attorney will no longer have any effect in the event that you lose mental capacity, an Enduring Power of Attorney will continue to have effect in this circumstance.

If you 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.

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.

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

No, you will not lose control of your affairs once you have appointed a Power of Attorney. The Power of Attorney is an authority for your Attorney to manage your affairs in accordance with your instructions.

You can revoke a Power of 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.

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.

You can 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.

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 administered the estate and that they will administer the estate in accordance with the Will.

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) within the estate of the deceased
• Details regarding all liabilities (mortgaged, loans, outstanding bills and other debt) within the estate of the deceased
• Details of the Executor and all beneficiaries

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.

To make an application for Letters of Administration, the Court requires:

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

In addition to the above information, you must prove to the court that reasonable efforts have been made to locate the last Will of the deceased. For example, providing the 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.