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If you need help in making a Will, organising a Power of Attorney or administering or disputing an estate, our team is here to assist you. |
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We all accept that one day we will die. If you don’t have a will when that day comes, your assets could be distributed contrary to the way you otherwise would have intended.
What is a will? A will is a legal document which will as far as possible ensure your assets are distributed according to your wishes after you die.
Your will can cover your assets such as your house, land, car, shares, bank accounts and other property.
If you prepare your own will you do so at the risk of causing emotional and costly battles amongst relatives.
This is because a number of legal requirements must be met for a will. Failure to follow may invalidate the will. If this occurs, the law may determine you have no will and that there is an intestacy.
Wills can and do bring about a range of emotions. However, Hogan Stanton can help you ensure: |
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that the terms of your will accurately reflect your intentions
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your assets are distributed according to your wishes after you die
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how you would like to provide for your children’s future
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how you choose an executor or guardian as these roles can be very demanding and often complex
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that you are informed about how to avoid or minimise possible claims by family members
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the legal requirements are met |
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funeral arrangements are covered
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Wills vary in their complexity. Thus the legal costs of their preparation differ. At your first appointment, ask your solicitor about the costs involved in preparing your will.
It is also advisable to review your will regularly, particularly if your circumstances change such as upon marriage, divorce, births of children and grandchildren, deaths of beneficiaries, financial changes or home or property changes.
Everyone should have a will and everyone should also have an Enduring Power of Attorney. |
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It is a fact of life that at some stage you may be unable to handle our own personal affairs due to declining health, severe accident or loss of mental capacity. If you do not wish for a government department or institutional trustee to handle your financial affairs or some other person you do not trust to handle your personal health matters then you can safeguard your affairs by making an enduring power of attorney.
There are generally two types. A power of attorney can be a General Power of Attorney or an Enduring Power of Attorney.
A General Power of Attorney is usually used for business purposes by a corporation or an individual.
An Enduring Power of Attorney is a legal agreement which gives someone else the power to make personal/health and/or financial decisions on your behalf whilst you are still alive. The word "Enduring” simply means that the power continues even if you lose the capacity to make the decision yourself until you die.
It is important that you give someone you trust this power. This is because you may not always be able to make decisions as and when you need to. Consider what would happen if you were overseas when important decisions were to be made and documents signed about the sale of your property. What would happen if you are too ill to make your own choices as to the medical treatment you receive or where you will live? What happens if an injury prevents you from making decisions or being able to communicate what you decisions are?
Giving someone an enduring power of attorney means that your wishes will be carried out, even when you lose capacity to make decisions yourself.
Why take the risk of making your own enduring power of attorney? Certain legal requirements must be followed to ensure the validity of the Enduring Power of Attorney and Hogan Stanton can ensure these requirements are met.
We will speak to you about: |
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your choice of attorney and number of attornies
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the extent of the powers you wish to give your attorney
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any specific requirements you wish met
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when you would like the power to commence
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Don’t forget that your Enduring Power of Attorney does need to be reviewed from time to time as certain circumstances may automatically revoke your document such as on death, marriage or in the event of a divorce. You may also decide that you need to change your choice of attorney or other provisions made.
When making your enduring power of attorney, speak to your solicitor about giving an Advance Health Directive. |
| Advance Health Directives |
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This is a document which allows you to give decision about your future health care should you lose the capacity to make decisions. It only operates during any period of loss of capacity.
It can include instructions to withdraw medical treatment designed to prolong life but does not extend to euthanasia.
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If you are named as executor in someone’s will, you have the responsibility of carrying out the terms of their will when they die. This means that you have to deal with their property (commonly know as their "estate”).
To act on the will, you may find that you have to apply for probate. So what is probate? Probate is the official recognition that a will is legally valid.
You will need a grant of probate if some people or organisations holding assets of the estate will not release them without sighting a grant of probate. However, probate is not always required. You may not need a grant of probate if the asset e.g. the family home is in joint names or the assets are not large or real estate is simply to be transferred to a beneficiary named in the will.
Hogan Stanton can advise you on whether probate is required and how to apply for the grant of probate, if necessary. We can agree to do this at a fixed fee.
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Intestacy means dying without a will. In that event your assets are distributed according to a rigid formula set down by succession laws in
Queensland.
Such laws may mean: |
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the sale of the family home or car
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you do not provide future financial protection for your children or grandchildren
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you leave disabled or incapacitated family members without adequate support
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you give your assets to the government if you have no relatives
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you have no say in who administers your estate or who is appointed guardian of your minor children |
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The court can on intestacy make a similar grant to the grant of probate. This is known as letters of administration.
So what are letters of administration? They are essentially the same as a grant of probate and show that the court is satisfied that the persons named in the letters has the authority to administer the estate.
How is the estate divided if there is no will? Generally the assets go to the next of kin according to the rules set out in the succession laws. Defacto relationships can be recognised.
It’s a good idea to consult us before taking any steps in relation to the estate if you are the surviving next of kin. We will guide you through the procedure for applying for letters of administration and advise as to your entitlements under the succession laws.
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An executor has many duties such as: |
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gathering or taking control of estate property
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lodging tax returns and finalising tax affairs
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notifying government departments and other organisations of the death
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advertising for any debts owing, and paying those debts out
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finalising any financial or business affairs
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paying out legacies
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distributing or transferring property according to the will
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You must be very careful in your administration of the estate, because you can be held accountable for any losses.
Hogan Stanton are here to guide you through the process and to assist you and your family during this most difficult time.
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These disputes usually arise: |
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where the capacity of the will maker to make a will is in question
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where it is argued that inadequate provision or no provision has been made for the proper maintenance and support of someone
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As strict time limits apply in certain cases to apply for relief from the court, it is always advisable to seek legal advice on your options and rights. Hogan Stanton understand that you may be grappling with the grief of losing a loved one and the unexpected changes in your financial circumstances which have occurred as a result.
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