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Wills, Power of Attorney and Estates
Wills
- Making a Will allows you to decide what happens to your
personal assets after your death and who will be in charge of carrying
out your wishes, known as your executor. There are many issues to
consider including:
- the identity of your executor;
- the appointment of guardians for
infant children;
- implications of holding assets
jointly;
- how to deal with assets held in
companies, trusts and superannuation funds ;
- the beneficiaries and the potential
effects of these beneficiaries dying before or with you.
If you die without a Will, known as dying
intestate, your assets will be distributed according to a legal formula
that is unlikely to reflect your wishes. In addition, the estate will be
put to considerable expense and delay because it will be necessary for a
beneficiary to apply for a court order to administer the estate. At
Harrisons we can advise and assist you with your estate planning. We can
draft a Will precisely reflecting your wishes to ensure the right people
administer your estate and the right people receive your assets.
Powers of Attorney - Five percent
(5%) of all 60- 80 year olds and twenty-five percent (25%) of all 80+
year olds will experience some form of dementia. The effects of dementia
vary but most commonly it results in some level of dependency and the
inability to make decisions for one self. Apart from this any person of
any age can suffer an accident or disease causing a lack of mental
capacity. Planning now while you can is a way to give yourself control
later on. In Queensland it is possible for you to give power to somebody
else you trust to make decisions on your behalf regarding financial and
personal/health matters in the event that you lose the mental capacity
to make these decisions. The financial power can commence straight away
if you wish so as to cater for some events not amounting to mental
incapacity such as physical illness or being away. The appointing
document is called an Enduring Power of Attorney.
In the event of you losing capacity without an appointed attorney, the
only party able to take control is the government through the Public
Trustee and the Adult Guardian. Our experience is that most clients
would prefer to have a trusted friend or relative dealing with their
affairs rather than the State. It is also possible for a relative to
apply to a Tribunal to be your Administrator/Guardian but that can be a
timely and costly process. The best and easiest way to deal with these
issues is by appointing an Attorney.
We can advise you about appointing attorneys so that you fully
understand the process and implications. We also are able to advise
attorneys about carrying out their duties. With the increasing
complexity of people’s affairs it is now more important than ever to
consider appointing an attorney to cater for an unforeseen event.
A related issue concerns making medical decisions in advance of you
losing mental capacity. This is called an Advanced Health Directive. By
this document you are able to prescribe medical treatment at a time when
you are incapable of making decisions. This may be based on religious
grounds or your desire not to be kept alive artificially. Together with
your doctor, we are able to assist you in the making of such a
directive.
Estate Administration - When you die
your estate must be administered. This is the process by which your
executor (if there is a Will) or administrator (if there is no Will)
gathers in your personal assets, protects them, pays your debts and
distributes appropriately to the beneficiaries.
Estates can involve many issues including how to identify assets, how to
obtain assets from third parties, ensuring assets are insured and
complying with all tax laws. Where there are significant assets, a third
party holding estate assets may require the estate to obtain a Grant of
Probate or Grant of Administration. Such Grants are orders made by the
Supreme Court that effectively recognize the authority of the Executor
or Administrator to administer an estate.
We have a long history of acting in estate administration. We can
provide vital assistance and advice so that all obligations owed are met
in an efficient and timely manner.
Disputed Estates – It is not
uncommon for a deceased estate to involve some dispute. This may involve
a fairly simple issue such as the time it is taking to complete the
administration. It may be more fundamental such as whether the willmaker
actually had capacity to make the will at all. In addition the law
allows certain classes of people to apply to the court to vary the
distribution of the estate on the basis that no or no adequate provision
has been made for them.
We can assist people administering estates when disputes arise. We can
also assist beneficiaries of and claimants against estates. Strict time
limits apply so if you are involved in an estate dispute it is important
to obtain legal advice as soon as possible. A failure to do so may be a
costly mistake.
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