Too often, people leave their estate planning until it is too late. However, having your estate administration prepared is a useful formality that will help you in regard to any family law issues that may arise.
If you need to get your estate in order, it is crucial to receive legal advice from a lawyer.
Wills
Having an updated Will is an important way of making sure that your family and loved ones are taken care of – even after you die.
A Will is a document which names the people that you want to receive the things that you own after you die. lf you do not have a Will, all your assets will be distributed according to a rigid formula and not necessarily in the way that you would have wanted.
You need to work with a lawyer to make sure that your Will is kept up to date and valid, especially after significant changes in your life. A lawyer will help you make a Will to protect your loved ones and provide legal advice on how to write a Will that will cater for complicated family situations.
Powers of Attorney
There are two types of Power of Attorney documents:
- Enduring Power of Attorney: A legal document that allows you to appoint a person(s) to manage legal and financial decisions on your behalf and continues even if you lose the ability to make decisions for yourself.
- General Power of Attorney: A legal document that allows you to appoint a person(s) to manage legal and financial decisions on your behalf, only while you have the ability to make your own decisions.
It is a good idea to have a Power of Attorney in place in case something happens to you and you suffer from permanent or temporary loss of capacity. This could happen at any time because of injury, illness or disability.
If you do not have a Power of Attorney in place, a court can appoint someone to manage your finances.
You can also appoint an attorney to manage your finances and pay your bills for you if you’re travelling or living abroad, if you temporarily or permanently lose capacity, if you wish to have someone else with experience to manage your finances.
You can use a Power of Attorney for the following purposes:
- signing legally binding documents
- operating bank accounts
- managing investments
- paying bills
- collecting rent
- buying and selling real estate
In NSW, an attorney can only make legal and financial decisions.
Contesting a Will
After a person is deceased, loved ones may have concerns that:
- They have not been appropriately provided for when a Will is read in respect to the estate of their loved one; or
- Concerns about the “validity” of the Will.
The most common type of contesting an estate relates to inadequate provision in a Will or being left out of a Will. There are also situations where loved ones are concerned that a Will was drafted prior to a person passing away at a time when they were ill or had limited capacity to give proper instructions. In the latter situation, if necessary, an application may be made to contest the validity of the more recent Will.
In the event an application is made regarding contesting a Will, the application is generally filed in the Supreme Court of NSW and it is served on the executor of the estate and any other potential beneficiaries.
Probate
Letters of Administration
When a person dies leaving assets in NSW, all assets of the deceased are deemed to be vested in the NSW Trustee. The duty of an Executor named in a valid Will is to call in all the assets and pay off any liabilities and distribute the Estate to the beneficiaries that are named in that Will.
The situation where Letters of Administration Grant are required is when there is no valid Will left. If there is a Will but no Executor or if the Executor has passed away or prefers to not administer the Estate – then the task of administration of the Estate can only be carried out by a person first obtaining a grant of Letters of Administration.
Duties of Administrator
There are many vital duties for someone that applies to be an administrator under a grant of Letters of Administration.
Section 44 of the Probate & Administration Act (NSW), indicates that once the grant of Letters of Administration is successful, all assets of the deceased vest in the administrator. In some legal documents, the administrator is also referred to as the legal personal representative. This is a very important role that entails administering the assets and liabilities of the Estate.
Generally speaking, the person with the greatest right to administration in NSW is the spouse of the deceased, followed by the children and then a fit and competent person and finally any creditor. If there is no fit person(s) that fit these descriptions, the owner of the house where the deceased resided will be granted the right to bury.