Wills & Estates

Wills and estate law (or succession law) is an area of law that allows you to plan for the future and protect your loved ones. It also involves the processes required for dealing with the affairs of a deceased person, generally referred to as “estate administration”.

Effective estate planning can help maximise and protect your hard-earned assets, minimise disputes after you die, and ensure that your affairs can be appropriately managed if you are incapacitated. Our experienced lawyers can assist with all your estate planning and administration needs, from preparing a simple will, to the creation of testamentary trusts and complex business succession planning.

Making a Will

A Will is a written document recording how you want your property dealt with and your assets distributed after you die. It appoints an executor (responsible for carrying out the wishes in your Will) and nominates your beneficiaries (those who will receive gifts and property from your estate).

What happens if you die without a Will?

If you die without a will (that is, you die intestate), your assets will be distributed according to a statutory formula, generally to your surviving spouse or partner and children or grandchildren (as relevant). If you do not have a spouse/partner or children, your assets may be left to your parents, siblings, nieces and nephews, grandparents, or uncles, aunts, and cousins as provided in the Succession Act. Only if you have no relatives as listed will your assets be left to the Crown.

Essentially, the rules of intestacy are designed to reflect what might be considered community standards, however this may not be the case for all people and may result in unintentional consequences. In addition to the uncertainty left for your surviving family, they will usually need to apply to the Supreme Court for letters of administration before distributing your estate, which can cause additional stress and expense.

Powers of Attorney

A power of attorney is a legal document authorising somebody you trust, such as a friend or relative, to act on your behalf with respect to certain affairs. This person is known as your attorney. Your attorney can act for you if, for example, you are overseas, suffer poor health or have an accident, or reach an age when you need greater assistance with personal and financial matters or if you lose capacity to manage your own affairs. Knowing you have an attorney to act for you when you need it can give you peace of mind but requires careful consideration. We can explain the various options for structuring your power of attorney so you can make an informed decision and have documents prepared that are tailored to your needs.

Deceased Estates and Estate Administration

After a person dies, someone needs to look after their property and finalise their financial and legal affairs. This is typically carried out by the executor/s appointed in the deceased person’s will or an administrator (appointed by the court) if a person dies intestate.

Before administering an estate, it is often necessary to obtain a grant of probate from the Supreme Court. The grant of probate “proves” the will of the deceased person and authorises the executor to deal with the estate assets and distribute them according to the will. In the case of a person who dies intestate, an eligible family member may need to apply to the Supreme Court for letters of administration before the estate can be distributed and finalised.

Executors and administrators have many responsibilities which may typically include:

• making funeral arrangements
• identifying and protecting assets
• applying for a grant of probate or letters of administration
• contacting the deceased’s account providers and government authorities
• claiming funds under superannuation and life policies
• distributing assets, and transferring property to beneficiaries
• organising estate tax returns

Sometimes, an executor or administrator will need to deal with issues that are outside their areas of expertise. For example, they may need to consider the order of payment of debts, or deal with an estate dispute or family provision claim. We can help you through the legal process, providing advice and guidance so you can carry out your duties and administer the estate as smoothly and efficiently as possible.

If you need any assistance, contact [email protected] or call 07 5474 1371 for expert legal advice.