If you’re wondering whether you need a lawyer when writing a will, the answer is yes. There is a common misconception that a will is just a piece of paper that says which assets will belong to who when you pass away. While this is true, there are many other legal rules you must follow to ensure your will is legally valid, and therefore your wishes will be executed as you planned.
At GMS Legal & Conveyancing, our qualified lawyers can help you navigate the laws and regulations surrounding wills and estate. We have been providing our services for clients on the Central Coast, Lake Macquarie and Toukley since 1988.
These four documents aim to ensure you assets, lifestyle and health choices are placed in the hands of people you trust, when you are no longer able to make these decisions for yourself, either due to death or a permanent illness.
A will is a legal document that describes how your belongings and assets are to be distributed after your death. It’s a way to ensure your loved ones are taken care of after you pass away and can help to avoid problematic family disputes.
For a will to be valid, it must be written by someone who is above 18 years of age and mentally capable of making their own decisions—under no undue influence or pressure from outside sources. The testator must be aware at the time of writing that the document is intended to be their will. The will must be handwritten or typed, signed upon completion, and witnessed by two or more people who must also sign the will.
If these conditions are not met or cannot be proven, the Court can deem the will invalid, your assets will be distributed in accordance with intestacy law.
Consequently, to ensure your wishes are followed through, it’s in your best interest to write your will with the help of a lawyer. Your lawyer can also help you alter the contents of your will if your situation changes, such as marriage, divorce or even a lotto win!
You can choose to appoint a power of attorney to allow someone else to look after your financial affairs and to act on your behalf, if you were unable to do so due to an illness, injury or any other reason. The power can be general, ongoing or only for a specific period of time. For example, if you were selling your house while overseas, you can appoint someone else to handle the sale and make decisions on your behalf.
The person you choose to appoint can be your partner, a member of your family, a friend. You have the ability to change or cancel your power of attorney any time while you are capable of making your own decisions. It’s important to remember your power of attorney has the same powers as you over your assets, so it’s crucial that the power of attorney document is carefully prepared, outlining your wishes with no room for interpretation.
Appointing an enduring guardian allows a loved one or another trusted person to protect you when you cannot do so, either due to sickness or injury. The guardian is able to make lifestyle and health decisions for you, such as whether or not you should move into a nursing home. This role differs from a power of attorney as they can’t make decisions on your money and property.
An advance care directive outlines your wishes regarding your health care and any medical treatments. If you have an irreversible illness, disease, injury or disability, your advance care directive can make decisions regarding whether you receive medical procedures, resuscitation or rehabilitation, as well as organ donation for research or to benefit another person.
We can’t predict our futures but having these four documents can ensure that your financial and health wellbeing is protected when you can’t make these choices for yourself. Speak to the team at GMS Legal & Conveyancing today for more information or visit us at our Toukley office.
Being an executor is a very important duty of your loved one who has passed away. In a nutshell, you are given the role of carrying the Will maker’s wishes contained in their will.
Your job is to immediately lock up and keep insured the Will maker’s house and personal property, against fire or other damage or items being stolen.
You need to locate the Will to see what the deceased’s wishes were for their burial or cremation, then you will arrange the funeral. A person may have a prepaid funeral with a particular funeral direction. You will be able to liaise with family members about the service.
Then you need to begin the task of going through papers in the residence to identify and locate all assets. e.g. bank accounts, real estate, cars, jewellery, life insurance.
You will receive from the funeral director the death certificate about 4 weeks after Birth Deaths Marriages have been notified. Immediately ring us and make a one hour appointment to give instructions to apply for probate.
The original Will, will need to be sent to the Supreme Court, Probate Division to “Prove the Will”. The court when granting Probate, will empower you to collect all assets into your control and clear any debts. After this you can distribute the estate to the beneficiaries as the Will instructs.
Normally, personal assets e.g. car, jewellery, tools, golf clubs, hobbies are distributed by the executor, to the people nominated in the Will, soon after death. A record should be kept by you of all distributions.
An executor should answer questions from beneficiaries, mostly to do with when they might receive their share of the estate. Whilst the job of executor is normally straightforward, there can be complications.
It is wise to instruct a solicitor to handle the legal aspects of the estate to protect yourself, the beneficiaries and respect the deceased wishes.
If a person dies without leaving a valid will, their assets will be distributed according to the laws of intestacy. This means that their closest relatives will inherit their estate, which may not be what the deceased wanted. For this reason, it is important to ensure that you have a will, that it’s up-to-date and that it reflects your current wishes.
In order to make a valid will in Australia, you must be over the age of 18 and of sound mind. You must also sign the will in the presence of two witnesses who are also over the age of 18. It’s important to note that spouses and de facto partners are not automatically entitled to inherit your entire estate if you die without a will.
Once you have made a will, it is advisable to review it every few years to make sure that it still reflects your current wishes. If you move to another state, you should also get your will checked by a lawyer to make sure that it complies with the laws of that state.
An executor is a person who is responsible for carrying out the terms of a will. If the person who made the will dies, the executor is responsible for distributing their assets according to the will. The executor is also responsible for paying any debts and taxes that are owed by the estate.
In some cases, the executor may also be responsible for managing the estate on behalf of the beneficiaries. Executors are typically nominated in the will, but if no executor is named, the court will appoint one. The role of executor is a complex and important one, and it should not be undertaken lightly. Those who are considering serving as an executor should seek legal counsel to ensure that they understand all of their responsibilities.
In Australia, the executor of an estate has 12 months to settle the estate. This includes distributing the assets of the estate among the beneficiaries. The executor also has a duty to pay any debts of the estate during this time. If the executor does not settle the estate within 12 months, they may be liable for any losses suffered by the beneficiaries.
It is also important to keep in mind that even if you have a valid will, it may still need to go through probate. Probate is the legal process of having a will authenticated and then carried out. In order for a will to go through probate, it must be lodged with the court by the executor named in the will.
The executor is responsible for ensuring that the deceased person’s wishes are carried out in accordance with the terms of the will. If you have any questions about whether or not your will needs to go through probate, it is best to speak to a lawyer who can advise you on your specific situation.