ESTATE PLANNING:

POWERS OF ATTORNEY + ENDURING GUARDIANS + WILLS + PROBATE

Morgan + English Commercial Lawyers can assist with all your Estate Planning needs. We can help you prepare for the unexpected by guiding you through the process of appointing people you trust to make financial, legal and medical decisions on your behalf if you have an accident, become ill or are otherwise unable to make decisions for yourself. We can also help you with planning for what will happen to your assets when you die by ensuring that your wishes are clearly documented in a valid Will. If you are named as an Executor in a Will, we can assist you in obtaining a Grant of Probate, so you can legally deal with the assets of the estate.

ESTATE PLANNING:

POWERS OF ATTORNEY + ENDURING GUARDIANS + WILLS + PROBATE

Morgan + English Commercial Lawyers can assist with all your Estate Planning needs. We can help you prepare for the unexpected by guiding you through the process of appointing people you trust to make financial, legal and medical decisions on your behalf if you have an accident, become ill or are otherwise unable to make decisions for yourself. We can also help you with planning for what will happen to your assets when you die by ensuring that your wishes are clearly documented in a valid Will. If you are named as an Executor in a Will, we can assist you in obtaining a Grant of Probate, so you can legally deal with the assets of the estate.

Wills

What is a Will and why should I have one?
A Will is a legal document which outlines what you would like to happen to your assets when you die. To make a valid Will you must be at least 18 years old and you must have legal capacity, which means you must be able to understand the nature and effect of the document you are signing, the nature and extent of your estate, and the people who may have a legitimate claim upon your estate. A Will is essential for every adult with assets, including superannuation. When you make a Will you will appoint a person to administer the estate after you die, the Executor, and specify who will receive the assets of your estate, the Beneficiaries. If you have young children, a Will allows you to name someone you trust to be a guardian to those children if there is no surviving parent.

Why do I need a solicitor to draft my Will?
A Will is one of the most important documents that you will ever sign. While you can prepare your own Will, a solicitor is best placed to give you advice that is tailored to your own financial situation and personal circumstances as well as ensure your Will is valid and truly gives effect to your wishes. The risks involved in drafting your own will include:

  • Failing to deal with all your assets, resulting in a partial intestacy and difficulties in administering the estate;
  • Failing to execute the Will properly, resulting in your Will being invalid (there are strict requirements that must be complied with when signing a Will)
  • Failing to appoint an Executor (or an appropriate Executor)
  • Failing to clearly set out your wishes regarding your assets.

What happens if I die without a legal Will?
If you die without a Will you are said to have died ‘intestate’ and your estate will be distributed subject to a pre-determined statutory formula known as ‘intestacy rules’. The way your estate ends up being distributed could be very different to what you intended, and the person who ends up arranging your funeral and administering your estate is appointed by the Court. Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind. If you die intestate and do not have any relatives closer than a first cousin, your assets will go to the government.

Appointment of Power of Attorney

What is a Power of Attorney?
This is a document where you appoint a person of your choice to make financial and legal decisions on your behalf if you become ill, have an accident, are away from the State or country, or for some other reason are unable to act for yourself. The person appointed is called your ‘Attorney’. You must be over the age of 18 years and have legal capacity to execute a Power of Attorney.

What is the difference between a ‘Power of Attorney’ and an ‘Enduring Power of Attorney’?
A standard Power of Attorney ceases to have effect when the person giving the power, the Principal loses legal capacity. An Enduring Power of Attorney endures even though you may have lost legal capacity.

Can I revoke a Power of Attorney?
Yes, you can revoke a Power of Attorney or Enduring Power of Attorney at any time so long as you still have legal capacity.

Appointment of Enduring Guardian

What is an Appointment of Enduring Guardian?
This is a document where you appoint a person to make health, lifestyle and medical decisions for you when you are not capable of doing this for yourself. Common functions of a Guardian include:

  • Making decisions about your living arrangements
  • Making decisions about your health care
  • Giving medical and dental consent

You must be over the age of 18 years and have legal capacity to execute an Appointment of Enduring Guardian.

Who can I appoint as my Enduring Guardian?
You need to carefully choose your Enduring Guardian, taking into account the person’s willingness to take on the role, their availability, age and health. You should appoint a person who would best understand your values and wishes, and who would have the skills to make good decisions for you.

Can I revoke an Appointment of Enduring Guardian?
Yes, you can revoke an Appointment of Enduring Guardian at any time so long as you still have legal capacity.

Probate

What is Probate?
Probate is the process of having a Will recognised and validated by the courts. An application needs to be made to the Probate Registry of the Supreme Court for a ‘grant of probate’. Once the grant is made, the Executor can deal with the assets and liabilities of the estate. A grant of probate is necessary if an Executor needs to transfer or sell real estate, and institutions such as banks, insurance companies and superannuation funds generally require a grant of probate before releasing or transferring assets.

How do I get a Grant of Probate?
To obtain a grant of probate you must first file a Notice of Intended Application which will be published via the Online Court. After 14 days of filing this notice a formal application for a grant of probate can be made. You will need to include various documents with your application, including the Will, Death Certificate and a complete list of assets and liabilities of the estate. Depending on the Court’s workload, a grant can take between 2-6 weeks to be issued.

2018 Australasian Law Awards Finalist - State Regional Firm of the Year
Regional-suburban law firm of the year 2017