Wills & Estates
Perth Wills Lawyers
Planning for your family’s future after you’re gone is a really important legal task.
If you take the time now to make an effective legally binding Will and Testament, you can save your family not only stress but money in what will undoubtedly be a difficult time for them.
How to make a Will
There is no single answer about how to make your Will. It all depends on your assets, your circumstances and who your beneficiaries will be.
Things you need to consider
Your Executors have the legal and administrative task of sorting out your assets and debts after you pass away and making sure that your wishes as outlined in the Will are upheld.
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-earned 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 is important that you get specific advice about your situation.
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.
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.
Estate planning is an active process of re-evaluating the estate when circumstances in life change, such as:
- Newly married couples or those divorcing
- A change to the family's asset pool
- A change in working conditions such as the buying or selling of a business
- Changes to superannuation, insurance policies or taxation levels
- The establishment of discretionary trusts
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.
West Perth Legal 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 served 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 in our secure vault.
Contact us to discuss your particular situation and your family’s needs.
Executor & Probate
At West Perth Legal we understand that dealing with a deceased estate is one of the more difficult challenges in life. From mountains of paperwork 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 Center link 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
- Organizing information for estate tax returns
- Family mediation and negotiation
- Contesting wills and defending estate litigation in the Supreme Court
Contact us to find out more or to arrange an appointment.
FAQs
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.
An executor’s duties may include responsibilities such as:
- Organizing the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting monies belonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through ot.
It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary, then you can apply to the Supreme Court for commission.
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.
Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.
Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though - giving up the responsibility is final.
Contact us to find out more or to arrange an appointment
Testamentary Trusts
A Testamentary Trust is a trust established under a Will and does not come into existence until the death of the person making the Will (the testator).
The testator can establish trusts under which the identity of the beneficiaries and the amount of their entitlement is determined either at death (also known as a fixed trust) or at some time in the future by the trustee (also known as a discretionary trust).
- Low tax rates for minor beneficiaries. An elderly testator with young grandchildren can provide significant tax benefits for those children’s parents.
- It enables discretionary distribution of capital and income to problem beneficiaries. For example, recovering from drug addiction or reforming their previous disqualifying behavior, discharge from bankruptcy or other qualifying event.
Factors to consider before setting up a Testamentary trust:
- If you hold significant assets
- If the income generated by your estate is likely to warrant a testamentary trust, as there will be ongoing costs involved in maintaining the trust after your death
- If the risk profile of your beneficiary warrants a testamentary trust
- If your beneficiary requires special attention such as beneficiary with disability
Please contact us for a tailored quote. Generally, a testamentary trust set up starts from $2,000.00
Power of Attorney
A Power of Attorney is a legal document whereby one person grants another person the authority to make legal and financial decisions on their behalf. A Power of Attorney can be used in several ways – from having another take care of your affairs whilst travelling to times of extended illness.
A Power of Attorney is a legal document whereby one person grants another person the authority to make legal and financial decisions on their behalf.
An Enduring Power of Attorney is used to appoint someone to make financial and property decisions for you in the event that you are unable to make those decisions yourself.
An Enduring Power of Guardianship is used to appoint someone to make health, medical and lifestyle decisions for you if you can’t make them yourself. This comes into effect only when you are deemed to have lost the ability to make decisions for yourself and gives your family the right to speak to health professionals about your medical situation and also to make the decisions necessary to carry out your wishes in regard to medical treatment options.
An Advance Health Directive enables you to set out specific directions in regard to medical, surgical or dental treatment in the event that you are unable to make the decisions yourself or to effectively communicate your wishes. It covers decisions such as refusing medical intervention under certain circumstances.
Powers of Attorney can be prepared in two ways – to come into effect immediately and to continue once the donor suffers a loss of capacity; or to come into effect at a future time (such as the onset of mental incapacity).
In order to sign a Power of Attorney, the donor must be capable of understanding the nature of the document they are signing and its effect. It is therefore important in situations where a Power of Attorney must be appointed that it is done so in a timely manner.
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.
Contact us to find out more or to arrange an appointment.
FAQs
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 need to appoint someone your trust to make the right decisions. In a Power of Attorney, you can appoint a single person to make decisions, or two people who you can nominate to make decisions jointly or independently. For Powers of Guardianship, however, you can either appoint a single person to make decisions, or two people who make decisions jointly.
They are legally responsible to you and must act in your best interests. Your attorney must manage your estate responsibly and also ensure that you enjoy as good a standard of living as your estate can provide. While you have mental capacity, they must obey your instructions. They must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.
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.
Yes, these documents need to be witnessed by a person with statutory authority such as a solicitor or Notary Public.
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.