WILLS & ESTATES
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SUCCESSION PLANNING
All adults should have a Will that documents their intentions. A Will sets out who you will appoint as your executor(s), who you would like to leave gifts or a portion of your estate to and who you would like to appoint as the guardian for any children under 18.
When you create your Will, it is the perfect time to consider putting in place power of attorney and health documents which are utilised while you are still alive but have lost capacity.
FREQUENTLY ASKED QUESTIONS
SUCCESSION PLANNING
If you pass away without a Will, your assets do not get automatically passed down to your family members. They will probably have to apply to the Supreme Court to have an administrator appointed for your estate, and so that the court can confirm how your assets are split up. This is a very time consuming and expensive process which can cause a lot of stress to your grieving family members.
Different people have different assets and different family situations. Your Will needs to be personalised to fit your circumstances. Sometimes you may need an Affidavit in addition to your Will, or maybe it would be best to set up a trust in your Will. In your first appointment with Belbridge Hague, we will talk with you about your unique circumstances so that we can prepare a Will that will give you peace of mind.
The laws in Victoria and NSW set out lists of people who can make a claim against your estate. Those people would need to bring an application and are not guaranteed to be successful. We can assist you with putting some roadblocks in place to hopefully prevent those kinds of claims from being successful. However, this shall depend on your personal circumstances and we are happy to talk about all of these issues with you.
There are many different trust structures available to you, however there are two in particular that are typically created in your Will. The first is a testamentary trust. A trust like this can be used to protect the assets of your estate and provide some protection to your immediate family. These trusts are created in your Will and only come into existence when you pass away. Testamentary trusts are not suitable for everyone, but we are here to sit down with you and work out your unique needs.
The other form of trust that you may need is a Special Disability Trust. If a person with a disability is dependent on you, it is no doubt very important to you to make sure that they are looked after financially after you pass away. We can include wording in your Will to make sure that a special disability trust is set up. You will appoint at least two trustees to look after this trust, who will then use the money in the trust to make sure that the person with a disability is looked after financially.
A Will only comes into effect once you have passed away. If you are alive but have lost the mental capacity to make your own decisions, it is normal to assume that your next of kin will be able to speak with medical professionals, banks and other bodies to make decisions on your behalf. Unfortunately, this is not something that happens automatically. For someone to have authority to speak on your behalf in relation to (for example) where you live, selling your home or signing you up for experimental medical treatment, they need to be able to wave around the right pieces of paper. We will walk you through the documents that you should have in place.
DECEASED ESTATES
Losing someone is hard, and you may be shocked to find out that grief can just be the beginning. From funeral arrangements to frozen bank accounts, not to mention family members asking questions about what happens now.
The estate administration process differs depending upon whether your loved one left a Will, the wording of that Will and the assets and liabilities in their name. You have enough on your plate. We hope that loss is something uncommon in your world, but assisting families after the death of a loved one is something that we handle with professionalism and care every day. Reach out to us below so that we can lighten the load.
FREQUENTLY ASKED QUESTIONS
DECEASED ESTATES
The Executor is responsible for making the funeral arrangements if the Will maker has not already made those arrangements. The Executor should follow any directions left by the Will maker as to the funeral arrangements but is not bound to do so.
An estate is all of the property and liabilities of a person in existence after their death. An executor is a person who has been appointed in a Will to manage the Will maker’s estate – see the next question and answer for more information.
The role of an Executor is to carry out the wishes of the Will maker as specified in the Will. This is a position of great trust and must be carried out with care and honesty. The Executor must:
- Act in the best interests of the estate and all of the beneficiaries and cannot act in their own interests if they are not the same as the interests of the estate and the beneficiaries
- Do what is specified in the Will unless there is a proposal to distribute the estate other than as set out in the Will, in which case all of the adult beneficiaries need to agree to the change
- Protect all of the assets of the estate until they are distributed
- Keep good records of everything they have done for the estate
- Obtain advice from professionals such as lawyers, accountants and real estate agents where necessary.
A person appointed as an Executor can refuse to accept the position of Executor, but this should preferably be done before that Executor has taken any significant steps after the funeral has been arranged. If the Executor seeks to step down from that position after they have taken significant steps beyond arranging the funeral, they must obtain the consent of the Supreme Court.
If there is no Will, the next of kin of the deceased usually has to apply to the Supreme Court for a document called Letters of Administration. This document is the court’s formal approval for someone to administer the estate of the deceased, effectively acting in the same role as an Executor but called an Administrator. Approval is usually granted in favour of a family member or another person who has a substantial interest in the estate.
CLAIMS AGAINST WILLS
Either side of an estate claim is probably not a place that you hoped you would find yourself. If you feel that you have not been fairly provided for in someone else's Will, we can provide you with personalised advice about where you stand. If you are eligible to make a claim and would like to do so, we can walk that path with you.
If your loved one has passed away and you believe that someone else may be considering making a claim, it is a good idea to get ahead of things. Contact us so that we can advise you about where the estate stands and what the next steps are..
FREQUENTLY ASKED QUESTIONS
ESTATE CLAIMS
Whether you are entitled to anything will depend on a number of things, but usually the first considerations are in which state you would be bringing your claim, whether you are an “eligible person”, whether the deceased owed you any obligations or responsibilities, and your financial resources including earning capacity. There is no hard and fast rule. Every matter will turn on the facts and circumstances that apply to you.
Even if you have been left something in someone’s Will, you might still be able to make a claim for greater provision from the deceased’s estate (or notional estate in NSW). It will depend on the facts and circumstances that apply to your matter.
The answer to this is “it depends”. It depends on a lot of different things as set out above, plus other things, including whether you had a family law settlement and what (if any) other arrangements existed between you after your intimate relationship ended. It will always depend on the facts and circumstances of your particular case.
Everyone enjoys testamentary freedom. That is, you can leave your estate to whoever you wish. However, we recommend that you obtain legal advice before deciding to leave someone out of your Will. The law on estrangement may surprise you. You may find that according to law you are not actually estranged from your family member or the estrangement is not enough to justify leaving someone out.
There are several differences between NSW and Victoria when it comes to estate claims. The major difference is that in NSW, in certain circumstances, there may be an ability to “claw back” any notional estate of the deceased if there is not enough left in the estate to satisfy a claim. In a lot of ways however, the assessment of a claim in NSW and Victoria is generally similar, subject to other minor differences such as the eligibility of claims by step-children.
