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Wills & Powers of Attorney

Wills

You have the opportunity to direct actions in line with your wishes through a legal Will (after death) and Powers of Attorney/Guardianship (during life).  If you don’t have these documents, there are legislated default actions and rights that apply.  These legislated defaults may not be exactly what you want.  It is important that your Will is correctly drawn to avoid complications once you have passed.

Article:  What happened in a recent court case resulting from a do-it-yourself will.

General wisdom dictates that you should re-evaluate your Will at major life events, winning lotto (we all wish), marriage, buying a home, divorce and in fact some of these invalidate your current Will.

If you have been appointed an executor under a Will, see our guide here.

What happens I die without a Will?

If you die without leaving a valid Will you are considered ‘intestate’ under the Administration and Probate Act 1958 (the Act).  This does not always just mean that no Will was prepared.  It can also occur when the strict legal requirements for a valid Will are not met.  It is for this reason it is important to have your Will professionally prepared to ensure your Will is valid and your loved ones are protected.

The importance of a valid Will

The Act applies to your estate if you die intestate.  A family member must then apply to the Supreme Court of Victoria to be administrator.  In the absence of a willing and able family member, the court may appoint a trustee at the cost of your estate.  The Act will also determine to whom your estate will be distributed.  This is especially crucial if you wish your estate to provide for a disadvantaged family member over others in your family.  It is also important if you are in a de facto or same sex relationship as under the rules of intestacy, your partner will be required to prove that your relationship was ‘valid’.  This is obviously something that, during their time of grief, would be best avoided.  A valid Will also alleviates potential disharmony between your family and friends once you are gone.

As a guide, under the Act your beneficiaries will be:

  1. If you leave a spouse or domestic partner, but no children, then your spouse or domestic partner will receive your whole Estate;
  2. If you leave a spouse or domestic partner and children, your spouse will receive the first $100k and one third of the residue, while your children will receive the remaining two thirds equally;
  3. If there is no spouse or domestic partner and no children, then your parents will receive your whole Estate. If your parents have predeceased you, then your Estate will pass to your siblings.  If you have no siblings, the Administrator will trace your family tree to find more remote relatives who are next in line;
  4. In the event that no surviving relatives can be found your entire Estate will go to the Government.

Standard Wills* – A Standard Will is one where there is the appointment of executor(s) (usually the spouse and an alternate), the entire Estate is left to the spouse, then if the spouse predeceases to the children of the relationship, then if the children predeceased to any grandchildren with perhaps a few specific item bequests included.  There may be other circumstances that will require inclusion and we can advise whether these fall within the scope of a Standard Will during our conference with you.

Testamentary Trust Wills – Unlike a Standard Will, a testamentary trust Will can be created whereby your assets are protected within the trust, with any income produced by the trust being distributed to your beneficiaries.   These types of Wills are particularly useful in respect to large asset holdings whereby tax issues may impact your beneficiaries.  As the trust is an entity of itself, the tax paid by your beneficiaries is only on that income received and not the value of the trust assets.  We can discuss whether such a trust can benefit your estate.

Disability Trust Will – Creating a disability trust in your Will ensures the future care of a disabled family member for the duration of their life.  However, there are limits on the value of the gift when claiming Department of Human Services (DHS) benefits and assistance.   Any income from the Disability Trust will be taxed a normal income tax rates.  Further information on DHS requirements can be found at http://www.humanservices.gov.au/customer/services/centrelink/special-disability-trusts

Providing Instructions – An initial meeting is required so we may obtain an understanding of your family circumstances, your family’s needs in the future and your current (and potential future) asset holdings.  This meeting can be done by attending at our office, by telephone or by email; whichever is convenient for you.  We will ask you for a copy of your photo ID at this point.

Powers of Attorney

We offer fixed fee costs for standard Wills, with packaged prices to include Powers of Attorney.  Please see our package rates on our legal fees page.  We always provide a written costs quote prior to starting any work, so should you require a more complex Will, our estimate of the cost will be provided to you prior to commencing any work.  If you have any questions, please contact us.

person (or people) to support them to make and give effect to their decisions.

  1. General Power of Attorney, covers all legal and financial matters, this ends when the donor loses capacity to act or at a fixed time.
  2. Enduring Power of Attorney (Financial and/or Personal), which covers financial and personal matters (prior to 1 September 2015 these were separate ‘financial’ and ‘guardianship’ powers)
  3. Enduring Medical Power of Attorney, covering all decisions in respect to your medical treatment; and
  4. Supportive Attorney Appointment, gives the attorney power in respect to personal and financial matters in a supportive capacity.

The Office of the Public Advocate also provides the following guides regarding the Powers of Attorney:

General non-enduring power of attorney
Enduring Power of Attorney
Enduring Medical Power of Attorney
Supportive Attorney Appointments

And information also for Attorneys, Agents and Guardians:

Advice for Attorneys (Financial)
Advice for Supportive Attorneys
Advice for Medical Agents

Clicking on the links will open the above guides for you.

Our fixed fees for Powers of Attorney or Guardianship are shown on our fees page.

If you have any questions please contact us for an obligation free chat.