Excellence in Estates
Having a will is important for those you love and care about, but is often put off. Many people may feel apprehensive, particularly if they have not previously seen a lawyer.
Radbone and Associates understand these concerns. We provide a top level of service to you at an affordable cost. For a straightforward will, we will charge a set fee of $440.00 for a single will or $660.00 for wills for a couple.
It is very important to know that any existing will made by a person is revoked (except in some special circumstances) by marriage. A person will need to make a further will after separation or divorce.
Divorce generally revokes any gifts of property in favour of a former spouse. A former spouse’s appointment as executor, trustee or guardian is also revoked.
Wills must meet technical legal requirements. There are also good practices, which although not necessary for a will to be legally valid, if not complied with will likely cause delay and extra expense when having the will probated (validated) after death.
Legal Requirements for a Valid Will
- Generally a will must be signed by the person making the will, although special steps can be taken for people unable to sign a will.
- The will must be witnessed in a specific way and the witnesses must also sign the will in the presence of the person making the will.
- The will must use specific wording to make it clear that it sets out the testamentary intentions of the maker and that it is intended to be his or her will.
Good Practices for Wills
- The will should not be witnessed by a beneficiary of the will.
- If possible, the same pen should be used to sign the will by the person making the will and by each of the witnesses.
- Once the pages of the will are stapled or bound together, the pages should not be separated or staples removed.
- You should not attach or pin anything to the will. Bulldog clips or other fasteners which may leave indentations, marks, scuffs or tears should not be used on the will.
- Each page of the will should be signed by the maker and the witnesses and dated.
Mistakes in the wording of a will, or the way in which it is signed and witnessed may invalidate all or part of a will.
If a person dies without a valid will, that person’s property is divided and passes to a person’s spouse, partner, children or relatives in proportions fixed by legislation. Without a valid will it is necessary for the person’s spouse, partner, children or relatives to go through a process which is more complicated and significantly more expensive than if there was a valid will.
Every person’s circumstances are different. A will is often vitally important to meet your special circumstances, and those of your family, relatives and other beneficiaries.
Special Circumstances which Need Wills
Special provisions will be needed where the person making the will is the owner of or has a share of a business, particularly if relations or other members of the family are also involved in the business. Consideration needs to be given as to whether the formation of a special trust or trusts is desirable to deal with the succession of a business, its assets and the running of the business.
Special provisions and considerations are needed to provide for disabled children and their care. Certain tax benefits are available for trusts which comply with certain legislation and are set up to provide for the disabled.
Second and Subsequent Marriages or Partnerships
Challenges arise with blended families to ensure that binding steps are taken to ensure the eventual fair distribution of assets to the children of each person.
Assets in both Australia and Overseas
Special provisions will be needed in relation to overseas assets. Often it is best to have a will in Australia which deals with the Australian assets, and another will done in the country where the overseas assets are which deals with those assets.
If You Make a Will with Us
We will meet with you at our office, or if it may be appropriate, at your residence or other location. At the first meeting we will discuss the circumstances of you and your family, provide advice to you, and obtain your instructions as to what you wish your will to achieve.
At the first meeting, we will find out from you:-
- Who will be your executors. If the executors are not related to you, it is helpful for you to be able to provide their full names and addresses. (See About Executors below).
- Whom you wish to leave your estate to. If the beneficiaries are not related to you, it is helpful if you are able to provide their full names and addresses.
- Details of any special needs or circumstances of the people you wish to leave your estate to.
- Details of your assets. The details of your assets do not need to be precise. It is very helpful however if you can tell us the nature of your assets, for instance what if any land you own and whether solely or jointly, details of bank accounts, shareholdings etc.
- Whether you have any business assets and what you wish to do with them.
- Whether all of your assets are in Australia, or if some are overseas.
We will provide advice to you as to how to achieve your wishes, whether a family trust should be set up to protect your assets, and how to minimise any tax liabilities. We will discuss with you what steps can be taken if you are concerned about the possibility of a challenge to your will.
Within a few days, or sooner as may be appropriate, we prepare your will and any other appropriate documents for signature.
At our second meeting, we will carefully go through your will and any other documents which we have prepared with you. We advise on the precise wording and effect of the will and documents. We will discuss and as appropriate confirm the instructions which you provided at the first meeting.
If everything is then in order you will sign your will and any other documents.
Many people wish that we keep the original will and any other documents in one of the safes at our office without charge. In these circumstances we provide photocopies to be kept at your home for reference.
Alternatively, you can take the original will and other documents. We will retain photocopies of the documents on our file for reference. In these circumstances we recommend that the original documents be stored in a safe, or a safety deposit box at a bank or other institution.
An executor is the person who deals with your estate after you have passed away. The executor takes control of your assets and ensures that those assets pass to the beneficiaries whom you nominate in your will.
Executors must deal with the estate expeditiously. Often, if appropriate, the executor will be a beneficiary of the will.
Powers of Attorney and Advance Care Directives
Often people have powers of attorney and/or advance care directives drawn up at the same time they make a will. Powers of attorney and advance care directives deal with the situation which may arise if you are incapacitated through illness or injury, or by reason of being overseas, and are not able to deal with or give effective directions your property or your personal circumstances including medical treatment.
Powers of Attorney
By a power of attorney you grant another person or people the ability to deal with, make decisions about and enter into contracts regarding your property, including real estate. In the power of attorney, you are able to place limits on the ability of your attorney or attorneys to deal with your property and make financial decisions.
It is important to have a power of attorney in situations where access to property such as bank accounts is needed if the owner of the property becomes incapacitated through illness or injury.
Obviously your attorney or attorneys must be people in whom you have complete trust. By law your attorney must act solely in your best interests. As well is drawing up a power of attorney for you, we can advise on steps to ensure that your power of attorney is only activated in appropriate circumstances.
Advance Care Directives
An advance care directive is similar to a power of attorney in that it allows another person to make decisions on your behalf. An advance care directive however appoints a person to make personal rather than financial or property decisions, generally of a medical nature, on your behalf.
Often an advance care directive sets out in advance the type of medical treatment which you wish to receive in the event that you are seriously injured or suffer a serious illness to the extent that you are unable to give instructions or consent.
Making a will is not straightforward. Please feel free to phone or contact us should you have any queries about or wish to discuss any of the information above.