At Clairs Keeley Lawyers, our team of experienced estate planning lawyers in Perth can help you put together an effective estate plan. We can help you with the drafting of a will, challenging of a will, provide advice regarding testamentary trusts and wills, and more. Below are some frequently asked questions our lawyers often get asked, which may be able to answer any queries you have regarding wills and estate planning.
Why do I need a will and estate plan?
A will provides peace of mind that your wishes will be effected after you die. A will can also reduce potential conflicts between your family and friends regarding the administration and distribution of your estate. An effective estate plan considers all the assets and liabilities you control regardless of whether you hold the asset or liability in your personal capacity, in a family trust or self-managed super fund. It also ensures control of those assets are left with the people you choose and trust.
Estate planning looks at your family situation which may be blended or may involve estranged children. It will consider the tax consequences of your legacies and also consider who will manage your assets and make decisions about your lifestyle if you lose capacity to make those decisions for yourself.
What is an estate plan?
An estate plan makes sure arrangements are in place to give effect to your wishes if you lose capacity or die. It includes giving authority to people you trust to look after you and your affairs if you need assistance during your life, and to implement your wishes after your death.
What happens if I don’t have a will?
If you die without a will, the Administration Act 1903 (WA) determines who can apply to be administrator of your estate and who will receive your estate. This may result in a family member administering your estate that you do not trust and unwanted family members receiving your assets. Not only do you lose all the decision making about your estate after you die, but you also make the administrative process of dealing with your estate more difficult for your loved ones.
Can I use a post office will kit?
Post office wills or DIY wills can be problematic. At Clairs Keeley Lawyers, we have assisted many executors seeking our help with a post office will or DIY will because the will is unclear as to how the estate is to be distributed. Other common problems we see are failed gifts because the asset has been sold or the beneficiary has died. It is also common to see the failure of the basic formalities required by the Wills Act 1970 (WA). Our estate planning solicitors will ensure your appointed executor will not have to deal with the common problems encountered with post office and DIY wills.
What do I include in my will?
You should appoint a trustworthy executor in your will and a suitable substitute in the event that your chosen executor dies before you or is unable to take the role. You can appoint more than one executor and more than one substitute. If you have children under the age of 18, you should think about who you would like to act as guardian of your children. The children don’t have to live with the guardian, but the guardian will make all the major decisions about the children’s welfare and upbringing such as where they live, what school they attend and what religion they follow.
Your will should include the beneficiaries of your estate, and if there is more than one beneficiary, what proportions are available. You can leave specific gifts of jewellery, antiques or artwork to specific people. Our Clairs Keeley estate planning solicitors will tailor your will for your individual situation and ensure your wishes are drafted in a clear and concise manner, leaving your executor with clear instructions in relation to your estate.
What else do you recommend I include in my estate plan?
In addition to your will, it’s important to consider who should manage your financial affairs and care should you lose the capacity to make those decisions for yourself. An enduring power of attorney allows you to nominate someone you trust to make decisions about your financial affairs. On the other hand, an Enduring Power of Guardianship allows you to nominate someone you trust to make decisions regarding your lifestyle and medical treatment. These documents provide peace of mind that someone you trust will make those decisions for you if you lose the capacity to be able to make those decisions yourself.
We also frequently draft other estate planning documents such as binding death benefit nominations for self-managed superannuation funds and deeds of appointment for family trusts. This is done to ensure control of assets are passed to the right people. We can also draft advanced health directives, providing your directions in relation to medical treatment.
My partner and I both want to leave our estate to children from our previous relationships. How do we arrange this?
Our estate planning solicitors assist a variety of blended families by utilising a range of legal techniques to tailor the estate plan for their individual family situation. A common scenario is providing estate planning to a couple with one or both having children from a previous relationship. The couple have the dilemma of wanting to provide for the survivor of them but also want their children from their previous relationship to be provided for.
Post office wills or DIY wills are not appropriate in blended family situations. By engaging with one of our experienced estate planning solicitors, you can greatly reduce potential family conflict following your death in a blended family situation. Our estate planning solicitors can tailor an estate plan to ensure your partner is provided for during their lifetime, but your estate will ultimately pass to your children following your spouse’s death in the proportions you wish.
What does an executor do?
After a person dies the executor is responsible for administering the estate including distributing the estate in accordance with the deceased’s Will. The executor must decide which assets are to be sold and which are to be retained, pay any liabilities and hold the balance for distribution to beneficiaries as required by the Will. Estate administration can be very simple and completed quickly or extremely complex and take many years to finalise.
What legal authority does an executor need?
The first step is to obtain a grant of probate of the Will. The grant of probate is obtained from the Supreme Court of Western Australia. The grant is a document the gives the executor authority to deal with the deceased’s assets such as bank accounts, shares or property.
The application for the grant includes the information to enable the Court to be satisfied that the person making the will has died, the person applying is the executor appointed under the last will of the deceased and the person entitled to administer the estate, the will is valid and it is appropriate to grant to the executor the authority to proceed with the administration. A statement of assets and liabilities at the date of death is included in the application.
Is probate always required?
In practical terms, a grant may not be required where the estate is very small and there is no land in the estate. In such cases, banks may agree to close accounts without a grant of probate if satisfied that the funds will be paid to the beneficiaries and the executor grants an indemnity to the bank.
What is a testamentary trust?
In some cases, not all the assets can be distributed quickly. Funds may need to be held for a child until that child attains the age of 18 years or older. In such cases, the executor holds those funds in trust under the terms of the Will until the conditions imposed by the Will are satisfied.
What challenges may an executor face?
There are many types of estate disputes. They include whether or not the will is valid, whether some terms of the will are void because of undue influence or for some other reason, should the executor be attempting to recover assets disposed of prior to death and claims under the Family Provision Act.
How can someone claim against an estate if there is a will?
The Act gives spouses, de facto spouses, children and, in some circumstances, grandchildren and step children the right to apply to the Court to vary the terms of a Will. The applicant must prove they fall within the class of eligible applicants and that they have a need. The Court must then consider whether in all the circumstances that exist, it is appropriate to make an order in favour of the applicant. If so, that order will also reduce provision that has been made for somebody else.
Our experienced estate lawyers can provide detailed advice and assist executors with all aspects of administration of estates.
If you have any queries about wills or estate planning that we may not have answered on this page, our team of friendly lawyers in Perth are here to help. For professional legal advice regarding wills and estate planning, contact our team at Clairs Keeley Lawyers today.