A Will is a legal document which formally declares how your assets and possessions are to be distributed at the time of your death. Your assets include any property that you may own, motor vehicles, insurance policies, money in bank accounts, jewellery, furniture ect.
Generally, lump sum superannuation benefits are not dealt with by a Will but rather a binding nomination with your nominated fund. Property held in joint tenancy is also considered separately from your will.
In general, a valid Will must be:
In short, yes you can. However, it is not advisable that you use a ‘’do it yourself’’ kit as there is a greater risk of mistakes and incorrect drafting which may mean certain gifts fail. As you may expect any mistakes may cause your family additional expense, stress, delay and may end up in court to rectify. To some people, a Will maybe one of the most important documents you are likely to sign so professional advice is important to ensure you have a valid will that correctly reflects your intentions.
The Executor is responsible for making sure your wishes are carried out in accordance with your will and may have to apply to court for a grant of probate in order to distribute your assets to the named beneficiaries. As such the executor should be someone you trust to deal with your property. If you wish you may appoint more than one Executor.
Yes you can alter your Will at any time. If the alterations are minor you can make a Codicil to your Will. You should not simply cross out any provisions. If the amendments are substantial you should consider making a new Will.
If you marry after you have made your Will it will be automatically revoked unless it is made in contemplation of marriage. Similarly if you divorce, a gift or appointment as executor of your former spouse is revoked.
A Power of Attorney (POA) is a document appointing a person ( called an ‘’attorney’’) to act on behalf of another person, who grants the power (called ‘’the principal’’) during the principal’s lifetime.
A POA enables the appointed attorney to make financial decisions on your behalf.
A general (or ordinary) POA will terminate if the principal loses mental capacity. This is generally useful for a short term appointment, for example, if the principal is travelling overseas.
An Enduring Power of Attorney is required if the attorneys power is to continue continues if you lose mental capacity.
Our lawyers can advise on the appropriate power of attorney required and the relevant requirements.
Appointing an Enduring Guardian differs from an Enduring Power of Attorney. An Enduring Power of Attorney is concerned with financial affairs in the event of loss of mental capacity whereas an Enduring Guardian (or Medical attorney) is appointed to deal with matters such as lifestyle, living arrangements and consenting to or refusing medical treatment.
If you wish to limit the scope of appointment to the making of medical decisions only you may prepare an ‘advance directive’ which is a document that sets out your wishes about future medical treatment.
|Legal Fee $|
|Couple/Partners (2 x Wills)||$500.00|
|Legal Fee $|
|Couple/Partners (2 x POA)||$200.00|
|Legal Fee $|
|Couple/Partners (2 x EG)||$200.00|
At McKenzie Lawyers we understand that the passing of a loved one is a very tough and emotional time and dealing with your loved one’s estate can be a stressful time. We have years of experience in estate matters and we aim to do our best to make the process stress free and provide straightforward and cost effective legal advice.
Obtaining probate is the process of proving that the Will is the last Will and Testament of the deceased. Once obtained the Supreme Court will officially grant probate to the Executor which will then enable the Executor to administer the Will of the deceased.
If you are in possession of a valid Will depending on the nature and size of the estate the Executor will need to make an application for probate.
If you are not in possession of a valid will the deceased’s next of kin will need to finalise the estate by applying for Letters of Administration.
You do not always need to obtain probate to finalise an estate but this depends on the nature of assets and the policies of the institutions holding the property.
In some cases, where the size of the estate is approximately $50,000 or less it may not be necessary to obtain probate but again this would depend on the nature of the property and polices of say the bank or financial institution where the property is held. Banks and other financial institutions have varying rules so would be best to contact the relevant institution to ascertain at what level it will insist on obtaining a grant of probate.
If a grant of probate is necessary and there is a valid Will the Executor will need to apply to the Supreme Court to obtain the grant. Various documents will need to be drafted in accordance with the court rules and then filed with the probate registry. We can take instructions from the Executor and then draft and file the necessary documents are your behalf.
Once a grant of probate is obtained the Executor is then in a position to administer the Will of the deceased.
In most cases, ie for uncontested applications we are in a position to offer a Fixed Fee for obtaining probate. In NSW there is a scale of fees that may be charged depending on the size of the estate. In addition the Court charges a filing fee.
In circumstances where there is no valid will and you need to apply for Letters of Administration we may also be in a position to offer a Fixed fee after taking instructions from you.
Where there is a challenge to the validity of a Will we can assist the Executor in defending the Will.
Alternatively, if you have been left out of a will we can assist in notifying and bringing a claim if necessary against the estate.
Similarly, if you are an ‘eligible claimant’ and there has been ‘inadequate provision’ we can advise you in relation to a possible Family Provision Claim.
In each of these circumstances we are able to provide comprehensive, cost effective and straightforward advice.
Click here for Family provision claims
If you need to write a will, grant a Power of Attorney, or appoint an Enduring Guardian, it’s important that you get legal advice. McKenzie Lawyers have the experience you need – and With our fixed fee arrangement, you don’t have to worry about your legal costs spiralling out of control.
Call McKenzie Lawyers today or fill out our Online Enquiry Form.