Creating a Will is one of the most important responsibilities of anyone with assets. Your Will directs how your assets such as your family home, bank accounts, and personal property are distributed when you die. Your Executor will administer your estate and will be responsible for your property, payment of outstanding debts from the estate funds, and administering the balance of your estate to your beneficiaries
We recommend that everyone should have a Will, and Wills should be reviewed every 2-3 years or whenever your circumstances change, for example:
• You have married or divorced since your last will;
• You have a child or children since your last will;
• You have a grandchild or grandchildren since your last will;
• You wish to appoint a guardian of your children;
• Your assets/property have changed since your last will;
• One or all of your Executors have died since your last will;
• You wish to leave a specific asset to a specific person;
We also recommend that everyone should have a valid Power of Attorney. This is a separate document to your Will and it appoints someone to make decisions for you should you be unable to make decisions for yourself. Your Attorney/s may be appointed to make either financial or personal health decisions for you (or both); therefore it is important that you appoint people that you trust.
Power of Attorneys
A Power of Attorney is a legal document which enables you to appoint another person as your attorney to make decisions or sign any documents on your behalf in relation to financial and/or health and personal matters. You can appoint more than one attorney and also set out clear guidelines, conditions or limits in relation to how and when your attorney can use their powers.
You may not always be in a position to make decisions or sign documents in relation to your financial and/or personal and health matters because of illness or injury leading to a loss of capacity or simply because you are overseas or interstate. If you are concerned that you will not always be in a position to make these types of decisions or to sign documents, you need to consider having a Power of Attorney.
You should make an enduring power of attorney if you are 18 years of age or over and have the capacity to understand the nature and effect of the power you are giving to your attorney. If there comes a time when you are unable to manage your own affairs, it may be too late to make your wishes clear to those who will care for you.
We offer a discounted rate for combined Wills and Powers of Attorney. Please contact us for a quote.
Superannuation and Binding Death Benefit Notifications
There is a common misconception that your superannuation will automatically form part of your Estate when you pass away. Consequently, many people do not consider making arrangements with their superannuation fund to make sure that their Superannuation passes in accordance with their wishes.
Your super is not distributed in accordance with your Will, rather it is governed by the agreement that you entered into with the trustees of your superannuation fund and the relevant legislation. The exception to this is where you have nominated your estate as the ultimate beneficiary to receive your superannuation upon your death.
Most superannuation funds will offer a binding death benefit nomination, however, it is dependent on the rules of that particular fund. The benefit of correctly preparing a binding nomination is that it provides certainty that the nomination will not be challenged. You may need professional assistance to understand what type of nomination is provided by your fund.
Please contact our experienced Wills and Estates Lawyers if you would like to seek professional advice when making your Will so that you can ensure that your superannuation is properly provided for.
Advanced Health Directives
What is an Advanced Health Directive?
An Advance Health Directive is a document that states your wishes or directions regarding your future medical treatment and health care for various medical conditions when you can no longer make those decisions yourself. You may wish your directive to apply at any time when you are unable to decide for yourself, or you may want it to apply only if you are terminally ill. The purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.
Anyone over the age of 18 can make an AHD as long as they have capacity to do so. It is best to make an AHD now, before any potential urgent health conditions arise. However it is particularly important to make one if you’re about to be admitted to hospital, your medical condition is likely to affect your ability to make decisions, or, if you have a chronic medical condition that could cause serious complications (such as asthma, heart, or kidney disease).
Your original Wills and Powers of Attorney are not worth risking in the case of fire, flood, loss or theft. At Paramount Legal we offer a safe custody facility to eliminate that risk. This service is provided without charge as a courtesy to our clients.
If you have recently had a loved one pass away, it is important that you understand how to administer the estate and what responsibilities you have as an Executor.
Our experienced Wills and Estate Lawyers can guide you through the administration process from start to finish. We will meet with you to explain the process including relevant time limits and the need to obtain a Grant of Probate or Letters of Administration.
Once Probate or Letters of Administration are obtained, we will assist you to call in all assets of the deceased and also to pay any outstanding liabilities. After all liabilities have been paid and assets realised, we will arrange for the distribution of the estate in accordance with the terms of the deceased’s will.
Letters of Administration
A grant of Letters of Administration may be necessary where the deceased died without a will (known as intestate). It provides the administrator with the legal authority to administer the estate in accordance with the rules of intestacy.
The process of obtaining Letters of Administration is similar to the processes for applying for Probate of a Will. The duties of an Administrator whom is responsible for the administration of the estate are similar to the role of an executor who is granted Probate, the only difference is that the Administrator must distribute the estate assets to those beneficially entitled in accordance with the rules of intestacy.
The Administrator is responsible for the deceased’s property and for payment of all outstanding debts and taxes from the estate funds before distributing the net assets of the estate pursuant to the rules of intestacy.
In order to get authority to administer the estate, an Executor of a Will needs to obtain a legal document called a Grant of Probate.
The Grant of Probate confirms that the author of the Will has died, the Will is authentic and the executor is who they say they are.
To obtain a Grant of Probate, a procedure must be followed including publication of a Notice of an Intention to Apply for Grant of Probate to determine that there are no subsequent Wills in existence and to notify potential claimants that the executor is making an application for Probate to the Court. An Application for Probate and supporting documentation needs to then be filed at the Supreme Court, no less than fourteen days from the date of publication of the Notice of Intention.
Family Provision Applications
People often need to challenge the contents of a Will; however, it can be difficult to know where to start.
The Succession Act 1981 (Qld) entitles eligible persons (only a spouse, child, or dependant of a deceased person) to make an application to the court seeking that adequate provision be made for their “proper maintenance and support” from the deceased person’s estate. This is commonly called a family provision application (FPA).
There are a number of factors the court considers in determining FPAs which include the:
- applicant’s financial position and needs now and into the future;
- ability of the applicant to meet their financial obligations;
- any physical, intellectual or mental disability of the applicant;
- size of the estate;
- any contributions made to the building up of the deceased’s estate or to the welfare of the deceased;
- competing claims – i.e. financial position and circumstances of the beneficiaries;
- standard of living of the applicant during the deceased’s lifetime;
- relationship between the deceased and the applicant; and
- wishes of the deceased.
At Paramount Legal, we understand that dealing with a deceased estate is one of the more difficult challenges in life. From mountains of paper work to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life. Our experienced estate lawyers will work through the legal aspects for you with determination whilst endeavouring to reduce the stress and complexity.