Wills and Estates

Wills

When you make a will there are many decisions that need to be made. The first is who do you want to make the executor(s) and then who do you want to receive your estate. Your estate involves assets that are solely in your name as any joint held bank account and shares will, following the lodgement of paperwork, transfer to the surviving account/share holder. With property there is a slight difference. Property held as joint tenants will transfer to the surviving holder following the lodgement of a Notice of Death though property held as Tenant-In-Common will not. In this case Probate will be required.

Probate is where the executor(s) apply to the Supreme Court for approval to administer the assets of the deceased. We can assist with all steps in applying for Probate, including the initial letters to institutions where assets were held, making the on-line Probate application to the Supreme Court and following the Grant of Probate collection and distribution of the assets in accordance with the Will.

Most married couples appoint each other as executors and give everything to the survivor. Couples who are concerned that their partner might re-marry can take steps to ensure that their share ultimately goes to the children and this is discussed with them.

Most issues arise when the second parent has passed away. One common consideration is whether you appoint as substitute executors your children or a friend? This will depend on the ages of your children. If all your children are adults do you appoint one of them or all of them or a mix of them? Often the answer will lie within the family dynamics. Once the executor(s) have been appointed the questions turn to the assets. Do you want to make provisions that certain items of jewellery, family heirlooms and/or memorabilia go to certain children? Do you want to make provision for grandchildren if you have any?

If you choose to give your estate to your children in equal shares do you want to stagger the payments to them? Do you want to give them some at 21, 25 balance at 30 years of age? Prior to them attaining these ages there would be provisions to provide for necessities of life. You can stipulate the schooling for your children. You can elect to nominate one or more guardians for your children up to the age of 18. You can provide that if one of your children pass away, then their share is to flow to their children in equal shares. By asking you these and other questions I can provide advice in the drafting stage that might eliminate problems for your children when you have both passed away.

If you have no children, do you want to leave your estate to family, family and friends and/or charities? We can provide advice on the categories of people who can claim against your estate to assist with this.

Enduring Powers of Attorney and Enduring Guardianship Forms

These forms are needed if you suffer from an incident that renders you lacking capacity in the future. This includes injury, illness, stroke, dementia etc. They need to be completed while you have capacity with the intention of only being used once you no longer have capacity.

The Enduring Guardianship form relates to your health and enables the appointed person to speak to the Doctors on your behalf and/or move you into respite/nursing care if required.

The Enduring Power of Attorney form is a document that can become effective as soon as it is signed. It gives the appointed person the authority to make legally binding financial and personal decisions on your behalf. This form has had many changes in the last 15 years as the area of Elderly Abuse has risen significantly.

So in appointing your Guardian and also your Power of Attorney you need to choose wisely and again the family dynamic will likely be at the forefront of your decision making. If you have more than one child do you appoint them all or only some of them? If you appoint more than one child do they have to act together or can they act separately? If all of your children live locally and do not travel then you might appoint them all. If your children live outside of your immediate area or travel a lot you might make a different election. If they all have to act and are absent then the documentation is worthless.

If you do not have children you may consider a friends or friends to fill these roles. Again discussion can lead to a solution.

Visit J.H. Fisher and Sons at

205 Concord Road, North Strathfield NSW 2137