Wills & Powers of Attorney

Recent Case on Court Made Wills – protecting the children until age 25 years

by Judica Swift on November 2, 2015 Comments Off on Recent Case on Court Made Wills – protecting the children until age 25 years

Court Made Wills (also known as Statutory Wills) is a fairly new and novel area of the wills and estates legal practice space.  The existence of this area can be an incredibly beneficial option available to those that suffer a disability and therefore don’t have the requisite mental and legal capacity to make their own will.  The law allows a family member to apply to the Court to permit the Court to make a will for that person in this situation. As you can probably imagine it has a clear formula as to whether the Court could and should make such a will and it has to be one that the disabled person would make themselves if they had the capacity to do so.

In the latest case of JW v John Siganto As the Litigation Guardian for AW & CW, the testator is 30 years old and was severally disabled in a car accident 10 years earlier.  The testator’s parents have been his primary carers since his accident and also care for and have custody of his two minor children, AW (13 years old) & CW (10 years).  The relationship between the testator and the children’s’ mother had broken down shortly after the accident and she no long has custody of the children.

The Court heard the application by the father to make a will for his son on the basis that the estate to set up two trusts for his son’s minor children to hold their interests in a testamentary trust until they reached the age of 25 years. The primary reason for doing so was that the estate was now quite substantial in value after a favourable outcome from litigation resulting from his son’s accident.  In addition to this main benefit, the will was also to benefit the applicant and his wife (his son’s primary carers for the past 10 years) and the testator’s sister who had also shown alot of support to the family since the testator’s accident.

Under the rules of intestacy, his children would receive the whole of the estate in equal shares at the age of 18 years.  The applicant’s argument was that such trusts being set up would ensure that the children would benefit from having guidance on how to manage such a large sum of money until they reached the age of 25 years. The estate was estimated to be approximately $9 million. The establishment of the trusts also provided taxation benefits for the children.

The court, being satisfied that the application met all the requirements and it being a will that the testator would make himself if able, allowed the application and proposed will.

You can read the full case here.

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Judica SwiftRecent Case on Court Made Wills – protecting the children until age 25 years

We’re coming to Ipswich!

by Judica Swift on July 10, 2015 Comments Off on We’re coming to Ipswich!

Our Logan & Scenic Rim branch is extending its service area to include our Ipswich community!

We appreciate how hard it is to get legal advice when and where you need it and that’s exactly why we’re extending our service area.  We’re listening and evolving with our clients’ needs and offering all our legal services to our Ipswich communities.  This includes all conveyancing services, wills, estates, powers of attorney, trusts, guardianship, retirement planning and retirement village contracts and elder law.  And there is still no catch; we still come to you at no extra charge!

If you need assistance with your legals, please contact your local team on 07 5547 7112 or email your local Solicitor, Nikki Gough, at ipswich@swiftlegal.com.au.

See you soon!

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Judica SwiftWe’re coming to Ipswich!

Now is the time; Why you should stop and make a Will now

by Judica Swift on April 10, 2015 Comments Off on Now is the time; Why you should stop and make a Will now

Do you know what would happen if you passed away?

Do you know who would be tasked with the job of finalising all of your affairs?

Look after your kids? Organise your funeral? Pay your last bills? Do your last tax return? Clean out your house? Sell your stuff? Divide your stuff among your family? Who in your family gets your things? What about your late mum’s wedding ring that was meant to be passed to your kids?

The list of things to consider seems endless, but you have to start somewhere.

There’s a dangerous misconception in the public that things will just “happen” when you pass away and that’s not always correct.

When you don’t have a will, no one has the legal authority to finalise your affairs straight away.  Your next of kin might be the most appropriate person, but without the Court’s approval, they don’t have the legal standing to take care of even the little things. And what about if there’s a dispute between family members as to who should look after your affairs? What about if things need to be done immediately? Who does them?  And who’s going to be guardian to your children? The costs of sorting this all out after your gone can and usually does far outweigh the cost of doing a will now.

When you don’t have a will, the law sets out how your estate should be divided and it may not be what you want. How your estate is divided among family depends on what family you have; kids, partners; mum and dad.

Your family can be left with the overwhelming difficulty that is passing away without a will (otherwise known “intestate”).

Your will can always be updated and should be as your live evolves and changes with time.

Protect your family, protect your wishes.  Now is the time; make a Will today.

Talk to one of our Solicitors.  We can make it even easier by coming to you (at home or work) or even meeting via Skype or Live Meeting.

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Judica SwiftNow is the time; Why you should stop and make a Will now

What is Letters of Administration?

by Judica Swift on April 5, 2014 Comments Off on What is Letters of Administration?

Letters of Administration is:

  • A legal document;
  • The process by which the Supreme Court appoints a person to be administrator of a deceased person’s estate and officially authorises the administrator to distribute a person’s estate in accordance with the Rules of Intestacy (i.e. the rules that apply when you die without a Will).

Letters of Administration is a similar process to that of obtaining a Grant of Probate.  See our post on Probate here.

The difference between Probate and Letters of Administration is:

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Judica SwiftWhat is Letters of Administration?

What is Probate?

by Judica Swift on April 5, 2014 Comments Off on What is Probate?

Probate is:

  • A legal document;
  • The process by which the Supreme Court proves the last Will of the deceased as valid
  • The process that officially appoints the executor as having the authority to distribute a person’s estate in accordance with their last Will

In Queensland, it is not always essential to get a Grant of Probate to administer someone’s estate;  this will generally depend on the assets held by the estate and the size of the estate.

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Judica SwiftWhat is Probate?

What if I don’t have a Will?

by Judica Swift on April 3, 2014 Comments Off on What if I don’t have a Will?

What happens when you pass away without a Will depends on a number of factors:

  • What family have you left behind?
  • Are children involved?
  • Is your spouse/child more needy than the others?
  • Does your family get along?
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Judica SwiftWhat if I don’t have a Will?

Joint Tenants & Tenants In Common, what’s the difference?

by Judica Swift on April 2, 2014 Comments Off on Joint Tenants & Tenants In Common, what’s the difference?

Jointly owned property may form part of your estate, depending on how it is held.

Joint Tenants

If you own property with another as Joint Tenants this means that upon the death of the first joint tenant, the interest in the property passes automatically to the surviving joint owner.  This is also referred to as the “Right of Survivorship”.  This is an automatic right.  As a result of this automatic right, this property will not form part of your estate.  The only time this property would form part of your estate is if you were the last surviving joint tenant and you passed away.  The property falls to the estate of the last joint tenant to pass away.*

Jointly held bank accounts are also subject to the “Right of Survivorship” and as a result will pass to the surviving joint owner upon your death.

Tenants in Common

If you own property with another as a Tenant in Common, you can own equal or unequal shares.  The difference with Tenants in Common is that when you pass away, your share will fall into your estate and be dealt with and distributed in accordance with your Will or the Rules of Intestacy (if you don’t have a Will).  For example; you own a house with another and you own 50% each as Tenants In Common.  When you pass away, your 50% share of that property will fall into your estate.

*Note:  other considerations might be relevant to your estate plan if you have property in NSW.

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Judica SwiftJoint Tenants & Tenants In Common, what’s the difference?

Why do I need a Power of Attorney?

by Judica Swift on March 27, 2014 Comments Off on Why do I need a Power of Attorney?

A power of attorney is the type of document that can save you and your family a lot of heart ache.  An Enduring Power of Attorney gives you the ability to appoint another person to act and make decision for you when you’re not capable of doing this yourself.

The types of decisions you can ask someone to make for you can be either finance and personal/health or both; and you can even give them directions on how you exercise that power.  But why get one?

If you are unconscious or in bed with a broken leg and can’t get out to sign some important document, your livelihood could be at risk.  If only you can make the decision you have to make, if you’re not able to make it, for one reason or another, that decision goes un-made.  What if you had to sell your house for medical expenses, but you didn’t have the ability to sign it over or engage an agent? What if you had to seek an extension of time for payment of an overdue bill, e.g. mortgage, phone bill etc?  If it’s just in your name, no one else has the authority to do these things, except you.

What about your health care?  Who makes decisions about those types of things when you can’t?  Do you want to be able to give certain directions to people about the health care you receive?

Whilst many organisations may be compassionate to your situation in some of the above situations, but they are bound by regulations and restrictions as much as the next and may not be able to help you.

It is practical issues like these that make these types of legal documents so important.

A Power of Attorney is one of the most important documents you’ll ever sign, so keep these critical things in mind:

  •          Your attorney must be someone you trust implicitly;
  •          You can limit or restrict the power you give your attorney as much as you feel necessary;
  •          Your attorney will be able to do anything you can do yourself (subject to any limitations or restrictions you place on them);
  •          Your attorney will be the person to make decisions for you until you pass away or the document is revoked (in some cases, automatically);
  •          If you lose capacity, you cannot revoke your attorney’s power without the help of the Court;

Yes, it is a serious document and yes, it can be a life saver in some circumstances.

If you’re an attorney for someone, you have very important obligations and responsibilities and you can be held liable if you do the wrong thing by that person.  They must not be taken lightly.   However, you can get advice and guidance on the power you’ve been given and what to do in certain circumstances.  If in doubt, call out.

If you have questions about appointing an attorney, making changes or revoking your attorney’s power, or if you’re an attorney and have questions about your appointment or a decision that needs to be made, please contact one of our Solicitors today.  You can contact us here.

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Judica SwiftWhy do I need a Power of Attorney?

Contesting Wills

by Judica Swift on March 18, 2014 Comments Off on Contesting Wills
  • Can anyone contest my Will?
  •   Can I stop someone contesting my Will?
  •   What do I need to know?

Not just anyone can contest your will, but each situation needs to be considered carefully. The law allows a certain category of people to contest a Will when they’ve been left out of or left little in a Will.  The law only provides this opportunity in some circumstances.  The category of people entitled to bring this kind of claim against someone’s estate, are:

  •   Spouses
  •   Children
  •   Dependents

A spouse, child or dependent of a deceased person who is left little or nothing in someone’s will, is entitled to bring a claim. However if someone contests a Will, a variety of things need to be considered, for example:

  •   Their financial situation
  •   Their health
  •   Their relationship with the deceased
  •   The size of the deceased’s estate

Whilst you cannot avoid this type of risk simply by writing it in your Will that no one can contest your Will, there may be other options to consider.

The best way to manage the risk of this happening to you is to get the right advice and get it now.  Too many times, we see people getting “stuck” in situations that may have been avoidable.

It is important to obtain legal advice about your situation and circumstances when preparing your Will or thinking about contesting a Will.  Each case is different.

If you have questions, please contact one of our Solicitors today.  Contact details can be found here.

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Judica SwiftContesting Wills