Wills & Estate Planning
Wills & Estate Planning
According to Wills and Estates Law, a Will is a legal document which allows you (amongst other things) to choose who deals with your estate and who receives your assets when you are deceased. It is also used to appoint a guardian to look after your children until they attain legal age to look after themselves.
Estate planning is the process of planning the distribution of your assets. It is more than just making a plan to distribute certain assets to certain people (via a Will or other legal document).
A complete estate plan will allow you to retain control of your assets both if you become incapacitated (due to physical or mental complexities) and when you have passed away. During this process you determine who will make decisions on your behalf should you become unable to do so in the future.
Estate planning can be done in consultation with your accountant or financial advisor and we work closely with these professionals and yourselves to customise a specific estate plan suitable to your needs and relevant to the assets you have.
We provide advice on what does and does not form part of your estate and ensure the Will is structured in a way to give effect to your wishes.
Probate
Probate
When finalising an estate there are many processes that need to be followed to ensure any property or assets are correctly transferred in accordance with the deceased wishes. There are legal obligations when you have been appointed as executor that you may need assistance with.
Probate is the process of proving and registering in the Supreme Court of Western Australia the last Will of a deceased person. In simple terms the Court needs to approve your appointment as executor before the estate can be administered. That Process is Probate.
To obtain a grant of Probate, the executor named in the Will must make an application to the Probate Office of the Supreme Court. If the application is approved, the executor is given a grant of probate, which authorises the executor to administer the estate of the deceased according to the terms of the Will. This allows the executor to finalise the estate of the deceased and authorises them to perform functions such as arranging payment of debts due to the estate, paying creditors of the estate and disbursing the remaining assets of the deceased as stipulated in the Will.
Letters of Administration / Intestacy
We understand that when someone close to you passes away it can often be a stressful time. Should they pass away without a Will, they have died intestate (meaning they have died without having a Will). They will need their estate distributed according to the law. This process is known as ‘Letters of Administration’ and allows for the estate to be distributed. There are many court documents involved in obtaining a Grant of Letters of Administration, including motions, affidavits and, in some cases, consents.
Our experience and knowledge allows us to streamline the necessary documentation and this process for you as quickly as possible given that this can be an upsetting time.
Distribution of Estates
When finalising an estate there are many processes that need to be followed to ensure any property or assets are correctly transferred in accordance with the deceased wishes as per the Wills and Estates Law. There are legal obligations when you have been appointed as executor that you may need assistance with.
Probate is the process of proving and registering in the Supreme Court of Western Australia the last Will of a deceased person. In simple terms, the Court needs to approve your appointment as executor before the estate can be administered. That process is probate.
To obtain a grant of probate, the executor named in the will must make an application to the probate office of the Supreme Court. If the application is approved, the executor is given a grant of probate, which authorises the executor to administer the estate of the deceased according to the terms of the will. This allows the executor to finalise the estate of the deceased and authorises them to perform functions such as arranging payment of debts due to the estate, paying creditors of the estate and disbursing the remaining assets of the deceased as stipulated in the will.
Letters of Administration / Intestacy
We understand that when someone close to you passes away it can often be a stressful time. Should they pass away without a will, they have died intestate (meaning they have died without having a will). They will need their estate distributed according to the Wills and Estates Law. This process is known as ‘Letters of administration’ and allows for the estate to be distributed. There are many court documents involved in obtaining a grant of letters of administration, including motions, affidavits and, in some cases, consents.
Our experience and knowledge allow us to streamline the necessary documentation and this process for you as quickly as possible given that this can be an upsetting time.
Distribution of Estates
Apart from obtaining a grant of probate (or letters of administration), we are able to assist you in administering/distributing the assets of the deceased estate to ensure that such distribution is in accordance with the Wills and Estates Law or the will (as the case may be) and legally transferred.
Such assistance includes (for example):
- Ascertaining and taking hold of assets;
- Liaising with banks, financial institutions and insurers to ensure funds are released;
- Preparing transfer of land documents;
- Dealing with trustees;
- Dealing with superannuation funds;
- Preparing deeds of family arrangement where the terms of the will or Administration Act are varied to make distributions in another agreed manner;
- Handling share portfolios; and
- Distributing assets to beneficiaries.
Business Succession Planning
Business Succession Planning
When people invest in a business together, they quite often fail to consider alternative strategies they may need in future. The business owners often start a business knowing how they want the business to run and don’t consider what may happen to the business if one of the owners is absent or dies.
The effect on a business in these circumstances can be catastrophic. In the event an owner passes away it may be their spouse (who is their Legal representative) that is appointed as the new owner. For example, a spouse may interfere with the running of the business and have voting rights if a succession plan is not in place and this may be contrary to the other owner’s intentions. Alternately, the estate may insist on the deceased share of the business which may have significant financial effects. The valuation methods that can be used for business are varied. There can be vast differences between what the valuer considers a business is worth and the owners value. If the documentation, when a business is set up, has an agreed formula for valuation this is likely to prevent costly and lengthy litigation. If a business owner is absent, they still have rights which usually include profit share or involvement in the decision making aspect of the business. With the correct documentation, these undesirable outcomes can be prevented.
A business succession plan can be prepared at any time however it is recommended in the early stages while the parties are all in agreeance. We offer a bespoke service tailored to the business needs ensuring the owners’ intentions are acknowledged.
Enduring Power Of Attorney
Enduring Power Of Attorney
As part of our advice around your estate planning we recommend you have in place an Enduring Power of Attorney (EPA).
In the unfortunate event that you are incapacitated (physically or mentally) and unable to manage your financial affairs (including any assets) the EPA allows you to appoint someone you trust to manage your affairs. An EPA can be made at any time providing you have the legal capacity to make the document. Should you lose legal capacity when an EPA is in place, it will continue to remain until such time as an application is made to the tribunal.
There are different types of power of attorney, some which are limited in their use and others which cease when you lose capacity. The difference between a power of attorney and an EPA is that an EPA does not cease on legal incapacity whereas a power of attorney does.
If a person is unable to manage his or her own legal and financial affairs due to incapacity and that person does not have a valid EPA, it may be necessary for a state-appointed trustee to make those decisions for the donor or a substitute power of attorney be appointed. In some circumstances it may be a requirement to make a formal application in the state administrative tribunal (SAT) for orders in relation to the appointment of an attorney whilst a person is legally incapacitated.
Executing an EPA is a cost-effective way of ensuring your interests are adequately provided for. We are happy to advise on which power of attorney is best suited to your circumstances and can assist you in drafting, correctly signing and filing at the land gate if required.
Enduring Power Of Guardianship
Enduring Power Of Guardianship
Advanced Health Directives
Advanced Health Directives
An Advanced Health Directive (AHD), also known as a living will, is a document where you make your future medical decisions now. This may address whether your life support is switched off, if and what medical treatment is provided to you and whether heroic measures would be made to extend your life in certain circumstances.
An enduring power of guardianship (EPG) is often used as an alternative to an AHD as it is more flexible in nature. For the preparation of an AHD, you must also seek advice from a medical practitioner so you are aware of the medical implications.
Challenging a Will or Estate
Challenging a Will or Estate According to the Law
Here are various reasons why an estate may be disputed. This may include:
- You believe the will-maker lacked capacity or was pressured at the date of the will;
- You believe a will is fraudulent;
- A promise was made to you in the will makers lifetime that was not noted in their will as agreed; and/or
- You were not adequately provided for in their will, or not provided for at all.
Even though it is a person’s right to choose who will inherit his or her estate, there are often situations where the law allows a will to be contested.
Challenging a will or a deceased estate is often a complicated and expensive matter. This is because there are many other factors to consider other than the legislation or the current case law which regulates how and when someone can challenge a will or a deceased estate. This includes who is allowed to challenge a will, the size and value of the estate and whether your portion or lack of is grounds for contesting.
It is important to obtain legal advice as soon as possible as there are time limits that may affect your right to challenge an estate.
If you have any concerns regarding your will or have an enquiry about challenging an estate we would be more than happy to discuss this further. Often we can resolve matters by way of informal negotiation or mediation. This will prevent you from needing to go to trial saving you time and money. If the circumstances require the need to go to court our litigation team can assist.