What you need to know before making a Will
A Will is a legal document explaining how your Estate (everything you own) is to be dealt with after you pass away.
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A will is not something we like to think about – but really important to have.
- Download the go-to guide on what you need to know before making a Will
- Easy to understand examples
- Learn about what an executor does
- How to challenge-proof your Will
- What happens to children under 18
- Do you need a legal guardian?
The importance of making a Will
- The Testator (will maker) decides who benefits from their assets when they die. If they die without a Will (“die intestate”), assets get distributed in accordance to law – in a specific order. For example, to a spouse, unless they have children from a former relationship, then other rules will apply.
- A Will can be used to appoint a guardian for minor children. In the absence of a responsible guardian, the Family Court may appoint one.
- The Testator can nominate their executor, the person(s) or entity whom they would like to manage their affairs.
- A Will gives clear directions to family and friends, helping to avoid unnecessary stress in circumstances where they are already grieving.
- Will save families unnecessary legal costs when dealing with the deceased’s estate.
- Specifically drafted Wills may reduce the amount of tax that beneficiaries will pay on the income received from the deceased’s estate.
FAQs
A will can be made if you are over 18 years and have full mental capacity.
Reasons to make or update your will include:-
– buying or selling property
– relationship changes (i.e. marriage, divorce, entering a de facto relationship or separating)
– starting or ending a business
– major changes to your financial circumstances
– travelling or moving overseas
– growing your family (i.e. children, stepchildren or grandchildren)
– coming into an inheritance
– illness
Some property cannot be gifted through your will. For example, if you own a property with someone else, such as a spouse as joint tenants, the other joint tenant is entitled to your share upon your passing, regardless of your will. Superannuation needs to be considered differently and needs to be discussed with your lawyer.
If you have separated with a partner and are not yet divorced, you don’t want your assets to automatically go to your estranged husband or wife – or your old will is no longer in line with your future needs. This makes it is even more crucial to ensure that your assets are left in accordance with your wishes – be it for your children, family or causes that are important to you.
You may also need to consider appointing a guardian for the care of any children under 18 in case you or your former spouse is no longer around.
A simple will the most common type of will that is very straightforward. It will determine who is to control and receive the benefit of everything you own when you pass away.
If you require something more complex, like the creation of testamentary Trust, contact us to obtain a quote. More complicated wills are generally only recommended to those who are leaving a substantial inheritance to their beneficiaries. This type of Will has asset protection and taxation advantages, but is more costly. We can discuss whether it is right for you at your consultation.
Marriage in Australia generally cancels an existing will – unless the will was made in contemplation of marriage.
If you are in a relationship and planing on marrying in the near future, but are not sure at the time of will-making, the law in New South Wales (and most Australian states) provides that if you express that expectation in your will and the marriage goes ahead, your will remains valid.
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Enduring Power of Attorney
Understanding Enduring Power of Attorney in NSW
An Enduring Power of Attorney (EPOA) is a legal document that allows you to appoint someone (your attorney) to manage your financial and legal affairs if you become unable to do so yourself due to illness, injury, or incapacity. In New South Wales (NSW), this document remains effective even if you lose mental capacity, ensuring that your affairs are managed according to your wishes.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney grants your appointed attorney the authority to handle your financial and legal matters, such as:
- Managing bank accounts
- Paying bills
- Handling investments
- Buying or selling property
- Conducting legal proceedings
You can specify when the attorney’s powers begin, either immediately or only if you lose capacity.
Benefits of an Enduring Power of Attorney
- Continuity of Financial Management: Ensures that your financial affairs are managed seamlessly without interruption, even if you become incapacitated.
- Control and Choice: Allows you to choose a trusted person to manage your affairs, giving you peace of mind that your interests are protected.
- Avoiding Guardianship: Prevents the need for a court-appointed guardian or financial manager, which can be a lengthy and costly process.
- Flexibility: You can tailor the document to suit your needs, specifying the extent of your attorney’s powers and any conditions or limitations.
- Safeguards in Place: NSW law includes measures to protect against misuse, such as requiring the attorney to act in your best interests and keep accurate records.
Why You Should Consider an Enduring Power of Attorney
- Preparation for the Future: Life is unpredictable, and having an EPOA ensures that your financial and legal matters are in safe hands if something happens to you.
- Protecting Your Assets: An EPOA helps safeguard your assets by ensuring they are managed according to your wishes, even if you cannot oversee them yourself.
- Peace of Mind for Loved Ones: Reduces the burden on family members by clearly outlining your preferences and appointing a dedicated person to manage your affairs.
- Legal Recognition: The document is legally recognized and enforceable, providing clarity and authority to your appointed attorney.
Steps to Create an Enduring Power of Attorney in NSW
- Choose Your Attorney: Select a trusted person who is capable and willing to manage your affairs.
- Draft the Document: Clearly outline the powers you wish to grant and any specific instructions or limitations.
- Legal Advice: Consider seeking legal advice to ensure the document meets all legal requirements and accurately reflects your wishes.
- Sign the Document: Sign the EPOA in the presence of an eligible witness, such as a solicitor or registrar of the Local Court.
- Notify Relevant Parties: Inform your bank, financial institutions, and other relevant entities about the EPOA to facilitate smooth management of your affairs.
An Enduring Power of Attorney is a crucial tool for managing your financial and legal affairs, providing security and peace of mind for both you and your loved ones. By planning ahead, you can ensure that your interests are protected and your wishes are respected, no matter what the future holds.
What is an Enduring Guardian?
An Enduring Guardian is a person you appoint to make decisions about your health and lifestyle, such as:
- Medical treatment decisions
- Consent to medical and dental treatment
- Decisions about living arrangements
- Access to services and support
Benefits of an Enduring Guardian
- Personalised Care: Ensures that your healthcare and personal care preferences are followed, reflecting your values and wishes.
- Trust and Assurance: Allows you to choose someone you trust to make important decisions on your behalf, providing peace of mind.
- Avoiding Legal Complications: Prevents the need for court-appointed guardianship, which can be a complex, time-consuming, and expensive process.
- Continuity of Care: Guarantees that decisions about your care are made consistently, even if you cannot make them yourself.
- Specific Instructions: You can provide specific instructions and limitations on the powers of your guardian, tailoring the document to your needs.
- Legal Recognition: The document is legally recognised, ensuring that your appointed guardian’s decisions are respected by healthcare providers and other institutions.
Why You Should Consider an Enduring Guardian
- Future Planning: An Enduring Guardian document is an important part of planning for your future, ensuring your personal care and medical treatment align with your wishes.
- Reducing Family Burden: Clearly outlines your preferences, reducing the emotional and logistical burden on family members during stressful times.
- Control Over Care: Maintains your control over important personal decisions, even if you become unable to communicate them yourself.
- Legal Security: Provides legal backing for your appointed guardian, ensuring that their decisions on your behalf are recognised and upheld.
Steps to Create an Enduring Guardian in NSW
- Choose Your Guardian: Select a trusted individual who understands your values and is willing to make decisions on your behalf.
- Draft the Document: Clearly outline the powers you wish to grant and any specific instructions or limitations.
- Legal Advice: Consider seeking legal advice to ensure the document meets all legal requirements and accurately reflects your wishes.
- Sign the Document: Sign the Enduring Guardian document in the presence of an eligible witness, such as a solicitor or registrar of the Local Court.
- Notify Relevant Parties: Inform your healthcare providers and relevant institutions about the Enduring Guardian document to facilitate the decision-making process when necessary.
An Enduring Guardian document is a crucial tool for managing your personal and healthcare decisions, providing security and peace of mind for both you and your loved ones. By planning ahead, you can ensure that your preferences are honoured and your well-being is protected, no matter what the future holds.
If you have separated and are not yet divorced – not appointing an enduring guardian may leave your former spouse with unimaginable right to control decisions about your health. This decision may almost certainly be better left with a trusted friend or family member.
Book a free intro consultation with us today to discuss your needs.