WILLS AND ESTATES

Hinde Ginges Boyd Lawyers can assist you with:

• Drafting & updating wills
• Drafting Powers of Attorney and Appointments of Enduring Guardians
• Applying for Probate or Letters of Administration
• Assistance with claims against wills & estates
• Defending claims against deceased estates
• Supreme Court estate litigation
• Assistance with commencing or defending family provision claims
• We always recommend keeping your will up to date as it makes distributing your estate a smoother process than might otherwise be the case.

Drafting and updating wills

There is no one answer about how to do your Will. It all depends on your assets, your circumstances and who your beneficiaries will be.

You need to make a will that makes your wishes clear, that avoids confusion and conflict amongst your loved ones, and that is legally valid and binding. Doing this will protect your family and friends from costly and stressful legal disputes.

Things you need to consider

Who will be your Executors?

Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the Will are upheld.

Who will be your beneficiaries and what effect will their inheritance have on their circumstances?

You can designate anyone as a beneficiary and distribute your assets in any way you like, however if you don’t provide for your family and dependents, your will can be contested and your hard won assets used on litigation fees.

You also should consider the effects that an inheritance may have on your beneficiaries. In some cases a testamentary trust can sidestep potential taxation problems, so it’s important that you get specific advice about your situation.

How do you know a Will is valid?

To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed, and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries, or related to beneficiaries and must be over 18.

If there is any doubt, or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your Will.

How often should I review my Will?

You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, death of a beneficiary or if your assets change significantly. We also recommend that you take a look at your Will every couple of years just to make sure that it is still the best instrument for you and for your family.

We can help

We know the potential pitfalls, and will ask you all the right questions to make sure that you have considered every possibility. We can advise you as to whether you would be best with a Will or a Testamentary Trust. We can design your Will in such a way to help protect your family from expensive estate litigation after your death and we can safely store your Will at our office.

Drafting Powers of Attorney and Appointments of Enduring Guardians

In New South Wales a Power of Attorney is used to appoint someone to make financial decisions on your behalf such as selling your house or operating your bank accounts, whereas an Appointment of Enduring Guardians is used to appoint someone to make health and living arrangement decisions.

Who can make a Power of Attorney & Appointment of Enduring Guardianship?

Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.

When should I make a Power of Attorney & Appointment of Enduring Guardianship?

Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.

You can choose when you want it to start. If you don’t make it clear when you want it to start then it will commence when your attorney signs the document to accept their position.

Who should I appoint to be my Attorney or Guardian?

You need to appoint someone your trust to make the right decisions. You can appoint more than one person if you wish, and you can specify exactly how they make their decisions – jointly or separately. For a Power of Attorney, make sure that the person you appoint has the necessary skills to deal with your finances.

What are the legal responsibilities of my Attorney?

They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.

Who should I talk to about it?

It’s really important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.

Do I need a witness?

Yes, these documents need to be witnessed by a solicitor/conveyancer or a registrar of a Court and cannot be witnessed by your attorney.

Can I change my mind?

Yes, as long as you still have the decision making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.

Applying for Probate or Letters of Administration

At Hinde Ginges Boyd we understand that dealing with a deceased estate is one of the more difficult challenges in life. From mountains of paper work to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life.

So, let us help you by:

• Interpreting the Will of the deceased in terms of estate laws
• Advising executors and trustees in regard to their duties and rights
• Informing government bodies including Centrelink and Veterans Affairs
• Applying for Probate of the Will in the Supreme Court
• Dealing with intestacy (where there is no Will)
• Applying for Letters of Administration (if the Will is deemed invalid or is absent)
• Identifying estate assets and liabilities
• Obtaining valuations of estate property
• Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
• Selling or transferring estate property including estate auctions
• Paying estate debts including mortgages, funeral costs, and testamentary expenses
• Advising in regard to family and testamentary trusts
• Administering trust funds
• Distributing bequests and inheritances to beneficiaries
• Organising information for estate tax returns
• Family mediation and negotiation
• Contesting wills and defending estate litigation in the Supreme Court

Claims against wills or estates

If you’ve been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the estate.

Who can dispute a Will?

It varies from state to state, but some of the people who may be entitled to claim include people who had a relationship with the deceased such as:

• wife or husband
• defacto or same sex partner
• former spouse or defacto partner
• child, stepchild or grandchild
• parent of a child of the deceased
• parent, brother or sister
• someone who was financially dependent on the deceased
• carer of the deceased

This is a very general guide only so please contact us to discuss your particular circumstances.

Is there a time limit?

Yes, there is. You have only 12 months from the date of their death to make a claim. In certain circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.

What if I don’t believe the Will was valid?

You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.

How do I make a claim?

First, contact contact us in order that we can assess your claim and discuss the particular circumstances of your claim with you. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.

If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court.

Failing all else, we will proceed to a court hearing wherein the evidence will be presented and the judge will make a decision.

We can help

At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to fight on your behalf.

Contact us to find out more or to arrange a consultation.