What is a Will?
A Will is a written document that sets out what you want to happen to your property (your ‘estate’) after you die. It gives instructions for the person or organisation distributing your property about how this is to happen.
Your estate includes any property you own at the time of death, including cash, savings and investments
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Why do I need a will?
Having a valid and up-to-date will, can limit the costs to your family and save them stress, money and time. It will also remove the doubt and difficulties that can come from there being no evidence of what your wishes are. See us at ibtlaw and plan for your future by having a will to make sure those that you love are looked after.
What happens if I don't have a will?
If you don't have a will, you won't have a say in how your property, money and other things (your estate) will be distributed. If you die without a will ('dying intestate'), your estate will be given out to your relatives. This may be very different from what you want to happen. Dying without a will can also cause delays and extra costs for those that you leave behind. If you do not have any close relatives, then your estate will go to the government.
If you want someone to look after your finances and make decisions for you while your are still alive you will need to make an Enduring Power of Attorney.
If you want someone to look after your lifestyle choices while you are still alive the you will need to make an Enduring Power or Guardianship.
You may also be able to challenge the will if the will itself in seen to be invalid.
It may have been signed by a person who 'lacked capacity', in that they may have had Alzheimers disease, dementia or an accident or injury that makes them incapable of making decisions . The person may have been pressured to change their will by friends or relatives.
When this happens you may be able to challenge the will.
Why would I need an Enduring Power of Attorney?
We often take it for granted that we will be making our own decisions about all the issues that affect our lives. Sometimes we may loose capacity, perhaps through illness, age or injury to make these decisions. This loss may be temporary or permanent.
You can decide in advance who will make decisions for you if you do loose the capacity for yourself.
The law divides these decisions into 2 categories:
Financial decisions can be about dealing with bank accounts, transferring money, paying bills, dealing with shares or buying and selling real estate.
Lifestyle decisions can be about where you should live, what services you should receive or what medical and dental treatment you might need.
Enduring Power of Attorney
When you are looking at appointing the person to look after your financial decisions, you will need to get help from a solicitor to give you detailed advice about your options.
To appoint a person to look after the financial decisions, your solicitor can complete a legal form with you called a ‘power of attorney’. You can decide what powers you are going to give the person you appoint to manage your property and financial affairs.
There are 2 types of powers of attorney:
A ‘general power of attorney’ is usually given for a specific period of time or for a specific purpose This type of power of attorney stops if you lose capacity.
An ‘enduring power of attorney’ is the one to use if you want to appoint someone to make decisions once you can no longer do so.
You should speak to the person you’d like to be your attorney before you appoint them to make sure they are willing and able to take on that role.
If you have been named the executor in a will, it is your job as the executor apply to the Supreme Court of NSW for a Grant of Probate of the deceased's will.
Probate means you are given the authority to carry out the duties of being the executor such as; pay any debts, call in any assets and distribute the estate to the beneficiaries named.
The first thing and most important thing you can do is get the advice of an experienced solicitor in Wills and Estate law.
Dealing with the defence of a will is usually the role of the executor of the estate. Getting an experienced solicitor who has a solid understanding of the duties of an executor and can evaluate the strengths and weaknesses of the claim is paramount.
A lawyer who specialises in Wills and Estate law, will be able to assess the merits of a dispute and give you advice on how to seek a resolution
An 'enduring guardian' is the person who can make the lifestyle decisions for you. Lifestyle decisions can be about where you should live, what services you should receive or what medical and dental treatment you might need.
A solicitor will help you in the appointment of enduring guardian, and will give you detailed advice about what powers to give the guardian