What is “testamentary capacity”? The legal test for assessing testamentary capacity was outlined almost 150 years ago in a case called Banks v Goodfellow (1870) LR QB 549. The test has four (4) aspects to it, namely: 1. That the willmaker understands the nature of the act of making a Will and its effects, 2. […]
Wills, Powers of Attorney & Enduring Guardian
Take care of the basics and keep them up-to-date as your circumstances change.
One of the most difficult tasks that Estate Lawyers have is explaining to family members why what needs to be done for a loved one simply can’t be done (or done that easily), because the person did not have their Estate Planning basics sorted out or up-to-date.
Estate Planning is very important for both you and your family. Don’t get caught out or cause your loved ones unnecessary stress and grief by putting off these important matters until it’s too late.
Speak to one of our Estate Lawyers today about getting your Estate Planning basics sorted.
Estate Planning Basics
Modern Estate Planning involves planning for the protection of wealth for the benefit of you and your loved ones as well as planning for the succession of that wealth to your intended beneficiaries in the most advantageous manner.
There are many issues that might be relevant to the persons Estate Planning, however, everyone should have the following important basics in place and kept up-to-date:
- Wills creating Testamentary Trust,
- Enduring Power of Attorney,
- Appointment of Enduring Guardian, and
- Personal Insurances (subject to financial advice).
A Will is a legal document in which you state how you want your Estate Assets to be distributed after your death. A Will also allows you to choose an Executor who will be responsible for making sure that your wishes are met and can also be used to appoint a Guardian to look after minor children until they can look after themselves.
Apart from these obvious advantages, a Will can avoid the expense and disputes that often occur when a person dies without a Will. Everyone should have a Will. A Will is the only way that you can tell others how you want your assets to be distributed after your death.
Wills can only be made when you have testamentary capacity. Therefore, now is the time to make or update your Will. Unfortunately, you never know what might happen in the future and everyone has a story about someone they know who has suffered an unexpected trauma or death.
Significantly, if you or someone you know has made a Will using the Public Trustee, the Public Trustee will be appointed as your Executor and will retain a percentage of your Estate Assets as a commission.
Your Will is one of the most important documents you will ever sign, and should, therefore, be prepared by a Solicitor experienced in Estate Planning issues and after having considered all you and your beneficiaries’ circumstances and liaising with your Financial Planner and Accountant where necessary.
Wills creating Testamentary Trust
It is impossible to accurately foresee your beneficiaries’ circumstances at your date of death. A standard Will gifts your assets to your beneficiaries absolutely, leaving your estate assets available to:
1. Creditors in the event of your beneficiary’s bankruptcy, or
2. The spouse or de facto partner of your beneficiary in the event of a relationship breakdown.
A Testamentary Trust is a Trust created by a valid Will and funded by the Estate Assets. The Trust commences when the Executor finishes administering the Estate.
Wills creating Testamentary Trusts allow your Executor(s) flexibility to determine how to distribute estate assets to offer the most effective asset protection and tax minimisation.
Enduring Powers of Attorney
A Power of Attorney is a document pursuant to which you appoint a person(s) to manage your financial affairs, usually in circumstances where you are unable to manage your affairs yourself (for example, due to illness, unsoundness of mind or time overseas).
An Enduring Power of Attorney is a Power of Attorney that only commences or continues to operate after you are unable to make decisions for yourself.
An attorney must always act in the best interests of the principal. Unless the attorney is expressly authorised, the attorney cannot gain a benefit from being an attorney.
Appointment of Enduring Guardian
An Appointment of Enduring Guardian is a document pursuant to which you appoint a person(s) to make health and lifestyle decisions on your behalf when/if you are no longer able to make those decisions yourself due to illness or unsoundness of mind.
Unless the guardian’s authority is restricted, a guardian may:
- decide where you live,
- to decide what health care you receive,
- consent to the carrying out of prescribed medical or dental treatments on you, and
- decide what other kinds of personal services you receive.
Personal Insurances are insurance policies that provide:
- A source of replacement income should you become injured or ill and unable to work, and/or
- A lump sum payment in the event of a severe trauma, total permanent disablement or death.
It is crucial to speak to a Financial Planner in relation to the role and importance of personal insurances and to review your policies periodically and/or as your circumstances change.
With our Fixed Fee Estate Planning Basics packages we’ve got you covered.
Advanced Estate Planning
Often there are simple solutions to complex Estate Planning problems that go unaddressed.
Find out what Estate Planning solutions are relevant to you and your family.
The purpose of our Guide is to provide a brief overview of the considerations and solutions relevant to our Advanced Estate Planning service.
Make an appointment today. Call now to speak to one of our Estates Lawyers.
1300 343 553
Get your Estate Planning basics sorted today.
Don’t put off what you know you should already be in place.
Speak to one of our experienced Estates Lawyers to find out more about our Fixed Fee Estate Planning Basics packages and Advanced Estate Planning solutions.
How We Help
We offer a competitive fixed fee service for the preparation of:
- Powers of Attorney, and
- Appointments of Enduring Guardian.
If you are interested in learning more about our Advanced Estate Planning solutions, we also offer a free 45 minute consultation so we can get to know you and your loved ones and provide some insights into those issues and solutions that might be relevant to you.
Benefits of our Fixed Price Documents
Our fixed price service includes the following benefits:
- We will uplift any existing documents from your former Solicitors,
- Our personalised documents are skillfully prepared by an experienced Estate Lawyer,
- All face-to-face consultations are conducted by one of our Estate Planning Lawyers,
- Your documents can be prepared and signed within one (1) week, or sooner if you request,
- We provide you with certified copies of all documents prepared on your behalf, and
- We retain your original Will, Power of Attorney and/or Appointment of Enduring Guardian in our fireproof safe custody facility until it is needed or you request its release.
Advanced Estate Planning
Often there are simple solutions to complex Estate Planning problems that go unaddressed.
Find out what Estate Planning solutions are relevant to our and your family.
Difficulties often arise in cases where a person with children from a first relationship subsequently enters into a new relationship or re-marries. Competing arguments will often emerge as to the testamentary entitlements of the person’s children from the first relationship on the one hand, and the new spouse on the other hand, when the person […]
Recently SBS Insight addressed the topic of “Making a Will”. The programme explored how the family provision laws under the Succession Act 2006 (NSW) enables a Court to effectively rewrite a person’s Will where it is found that an inadequate provision has been made for an eligible person. Two (2) of the guests that were […]
It is important that you keep your Estate Planning up-to-date as your circumstances change and that you are confident that nothing has been overlooked. To help you better undertand the issues relevant to Advanced Estate Planning, in 2016 we released “Advanced Estate Planning – Simple Legal Solutions“. This Guide deals with the following common Estate Planning […]
John and Jane are in their 60s and have been in a de facto relationship for 10 years. They have both been married previously and each have adult children from a previous relationship. John entered the relationship with significantly more assets than Jane, including the home they now live in. John wants to ensure that […]
Sue is married with two (2) adult children and a grandchild on the way. Sue operates a small business as a sole trader. Sue is an only child and expects that she will soon receive a substantial inheritance from her elderly mother. Sue seeks legal advice as to what she should do to ensure her […]
With the aging population and the number of blended families and second spouses on the rise it is increasingly important that your Estate Plan effectively addresses the competing interests of your children and a second spouse. Life Interests or Rights of Residence created in a Will are common parts of many Estate Plans when there […]
What is a Contested Wills Claim? A Contested Wills Claim (more commonly know as a family provision claim) is a claim made by an “eligible person” against your Estate Assets after your death. The Succession Act 2006 empowers the Courts to make Orders in effect remaking a person’s Will where the “eligible person” has been […]
The simple answer is that when you die your worries will be over. Wills creating Asset Protection Trusts (also known as Testamentary Trusts) only benefit a person’s intended beneficiaries. However, if it is your intention to leave your assets to your intended beneficiaries in the most advantageous manner for them upon your debt then you […]
What is an Asset Protection Trust? (also known as a Testamentary Trust) An Asset Protection Trust is simply a Trust created by a valid Will and funded by Estate Assets. The Trust commences when the Executor finishes administering the Estate. There a many different types of Testamentary Trusts that can be established in a Will. Most Asset […]
What is Personal Insurance Planning? What would happen to you and your loved ones if for any reason you were unable to continue to earn an income? How long could you and your family maintain your current lifestyle or afford to make repayments on your house or investment loans? Your ability to earn an income […]
What if I suffer a serious injury, illness or trauma? Fundamental to every Modern Estate Plan is considering what will happen to you and your loved ones in the event that you suffered from a serious injury, illness or trauma during your lifetime. This involves: the appointment of trusted persons to act as your attorney […]
What is Advanced Estate Planning? Advanced Estate Planning is not just about making a Will, Power of Attorney and Appointment of Enduring Guardian. Advanced Estate Planning is planning for the preservation of your wealth during your lifetime as well as planning for the succession of that wealth to your intended beneficiaries in the most advantageous […]
Sophie’s parents’ Wills were apparently straightforward. Under terms of the Wills, everything her parents owned was left to the surviving parent and then, in the event that both her parents had died, the Wills divided their assets equally between Sophie and her brother. When Sophie was (not so happily) married to David, David’s business needed […]
I would highly recommend Anna Roberts to anyone who needs legal advice in relation to the preparation of Wills and organising their affairs.
“Anna prepared my Will, Power of Attorney and Appointment of Enduring Guardian without delay. She explained them to me in plain-English and made sure I understood their contents before I signed them.
I would highly recommend Anna Roberts to anyone who needs legal advice in relation to the preparation of Wills and organising their affairs.”
I had my Will done by your people and I had the best service and advice.
“Robert Legal are great! I had my Will done by your people and I had the best service and advice. I’ve been recommending Roberts Legal to many people.
The secretaries are awesome too!”