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At John Harris Solicitors, we understand that when a loved one passes away it can be a difficult time. That is why our team collate compassionately and thoroughly work through the administration process in order to prevent lengthy delays or complication that may arise.
At John Harris Solicitors, we pride ourselves on providing well educated and resourced estate planning advice. We have access to legal data base and precedents from around the country that enables us to constantly update our skills and precedents and keep abreast of new changes in this area of Law.
What is a will?
A Will is a legal document in which you state how you want your assets to be distributed after your death. A Will also allows you to choose an Executor who will be responsible for making sure your wishes are met. There are many misunderstandings about Wills and the administration of deceased Estates.
Should I Use a “Wills Kit”?
While you may save a little bit of money, there is a very good chance you will be creating expensive problems for your estate. They are marketed as a cheap alternative to having a solicitor prepare your will, the idea being that you will not only have a will (which you should have), but you will also save money. It probably sounds self-serving for a lawyer to tell you to avoid "will kits", but they are marketed as a "one size fits all" solution to creating a will. The kit typically includes a pre-printed form and instructions on how to fill it out. Unfortunately, life is not as simple a pre-printed form, a will needs to be tailored to meet each individual’s particular circumstances.
The way in which a will is structured is important. The wording in a will must not only be precise, but the various paragraphs dealing with the management and distribution of your estate must follow a particular order to be effective. While the forms and instructions in a "wills kit" make some attempt to deal with this ordering of the paragraphs, because you are completing it yourself, it is easy, through wording errors, to get the paragraph ordering wrong with unintended results.
Your will is one of the most important documents you will ever sign. It has to be right, because you're not going to be available to make corrections because you will be dead by then. The marketers of "wills kits" provide their product with lengthy disclaimers freeing themselves from any responsibility if the "wills kit" doesn't work and your estate suffers a loss. The "wills kit" may be the cheapest product on the shelf, but like any other purchase, you get what you pay for.
While that cost is more than what you would pay for a "will kit", you have the comfort of knowing that your will has been done properly and when it is acted upon, your wishes will be carried out. The cost differential is relatively small, and the peace of mind is well worth it.
Bottom line, avoid "wills kits"!
What is an Executor?
Your Executor is responsible for the entire administration of your Estate and for carrying out your wishes, as set out in your Will. The appointment of your Executor is entirely up to you.
What is a Probate?
Probate is the court order that is issued by the Supreme Court of Queensland allowing your executor to "execute" the provisions of your will. Probate is the legal sanction to your executor to carry out the terms of your will and distribute your estate in the manner described in your will. Your executor requires a Grant of Probate before he or she can obtain control of a number of the assets in your estate including investments held in financial institutions, real estate and the like. Once the Grant is obtained, an executor can then proceed to liquidate the estate in preparation for distributing it as set forth by your will.
Should I change my Will?
Your Will expresses your wishes at a certain point in time. Times change and your Will should change with them. Situations where you might want to change your Will include:
- you marry, divorce or enter into a de facto relationship
- you have a child or step-child
- you have a grandchild
- one of your children is divorced or separated
- your children have step-children
- your spouse or partner dies
- a beneficiary dies or is incapacitated
- you acquire or dispose of assets - especially an asset specifically left to people in your Will
What is a Testamentary Trust?
A testamentary trust is in essence a trust contained in a will. On many occasions a husband may leave his estate to his wife, or if she dies before him, then to his children in equal shares. As an alternative to this he could leave the estate to a trustee named in the will (possibly the wife) to be held on trust for his wife, his children, and his children's family. Whoever is the trustee may be given discretion to apply, distribute, reinvest and generally deal with the assets of the estate and the income therefrom. The trustee can therefore distribute income amongst the beneficiaries nominated in the will at the discretion of the trustee. The trustee is often the surviving spouse or adult children.
Income or capital can therefore be allocated to those beneficiaries who can use the money most effectively. Allocations can therefore be made according to the circumstances at the time rather than based on the will maker’s direction at the time of making the will. Quite often a person is also nominated as "appointor" and that person will have the power to remove a trustee and appoint someone else as trustee in his place. Initially the surviving spouse could be the appointor, and after his/her death the child or children for whom the trust was originally intended.
There are significant taxation advantages and protection of assets advantages to your beneficiaries if your estate is left to them via a testamentary trust. There are also the advantages that a testamentary trust provides in times of separation whereby the control of the trust can be transferred by the appointor to someone else. Where you have children with disabilities or alcohol and drug problems alternate trustees can deal with the assets of the trust in an appropriate way to benefit the beneficiary and not leave the assets to be wasted.
What is an Enduring Power of Attorney
Power of attorney is the legal power to make decisions on someone else's behalf. "Enduring" simply means that the power continues even if the person giving it loses the capacity to make decisions.
Why give someone enduring power of attorney?
There are some circumstances in which you may be unable to make decisions about matters that concern you. For example, you may be overseas, or you may be too ill.
If you give someone a general power of attorney, for instance to sign documents for you in your absence, that power will come to an immediate end if for some reason you lose your capacity to make decisions. This could be very awkward if your attorney is in the process of conducting business affairs for you. Giving someone enduring power means that he/she is able to continue to act for you if you lose capacity to act for yourself.
Where to now?
The best way to get the answers you need is to speak to a solicitor, so call us on +61 7 3839 1500.
Organise an initial consultation
A face-to-face consultation gives you the opportunity to discuss your family law issue with professionals who deal with and resolve these issues on a daily basis. We provide a free half an hour initial consultation. It gives you a chance to ask any questions you may have and for a member of our team to gain background and provide an insight into the options available to you.
For more information please call us on +61 7 3839 1500 or send us an e-mail at info@jhsolicitors.com.au. We are here to help.