Wills and Powers Of Attorney
Posted On June 29, 2016
This is not legal advice but a broad overview on Wills and Powers of Attorney. Keeping in mind that each client has his or her own particular circumstances which may not fit a standard form or mode. This is not legal advice.
If a person doesn’t have a will and dies their Estate is subject to current State law which may not be what they wish.
A new will revokes a prior will but sometime a prior will is used to interpret the meaning of a new will if the intentions of the new will is not clear
A will should be carefully planned and not left to the last minute. The person making the will is called the Testator (Or Testatrix if a lady). The Testator should have the testamentary capacity to execute the will. A will should be revised on a regular basis as each individuals circumstances change from time to time and the will should reflect their most current circumstances.
The Testator first should consider whom they wish to be their Executor. The Executor who can also be the Trustee should be a person over the age of 18 who can do their duties both competently and diligently. In addition there should be a substitute Executor just in case the Executor dies or is unable to act before Testator dies.
Although the Executor is responsible for the administration of the Estate the bulk of the work is done by us. This includes advising the Executor, obtaining instructions and attending to all the various matters to wind up the Estate. In most cases probate is obtained and then the Estate is distributed to the names beneficiary’s.
As far as Beneficiary’s go the Testator should consider whether they want to give any specific gift to anyone. For instance a special ring, a car or a bequest to a charity.
The powers given to the Trustee are also important. For instance you may want to give your Trustee the power to invest money or assets and you may want to give your Trustee the power not to necessarily have to sell an asset at the Trustees discretion.
The residue of your Estate is then considered. That is what is left after all your debts are paid and any specific gifts are given to anyone. There should be a layer of beneficiary’s just in case someone dies before you without you having changed your will.
For instance a Husband can leave all his Estate to his Wife and vice versa but a provision must be made in case they both die together or within 30 days of the others death. Normally the residue of the Estate would go to the child or children if such a case occurred upon reaching a certain age and to grandchildren taking the share of their parent in case the child were to die first. It would also be prudent to cover the situation where upon their death of the Testator there is no spouses, children or grandchildren. In this case careful consideration to whom the Beneficiary’s would be.
If a beneficiary is a child under the age of 18 a Guardian would have to be appointed.
As far as execution of the will is concerned two witnesses (not Beneficiary’s or Executors) must watch the Testator sign the will and the Testator must watch the two witnesses sign and the witnesses must watch each other sign.
The making of a will is an important and involved process. Much thought and consideration should be given. Standard will kits or having a will prepared by a non-legal Practitioner is very risky and can lead to a lot of trouble.
In addition if the will is not properly executed it may be invalid. Execution is best done at our office where we have attended to hundreds, if not thousands of wills.
Another aspect that should be considered when making a will is whether it is likely to be challenged. The Testator may have left someone out of their will who may claim that the Testator had a moral or a legal obligation to leave to them part or the whole of the estate. These challenges often lead to litigation with costs coming out of the estate. It is very wise to tell us right from the outset whether there is likely to be a challenge by anyone when instructing us.
Should you, or anyone you know, have no will or is considering changing their will an appointment should be made to see us at our office. To properly advise a Testators personal circumstance must be taken into account and several different issues will need to be discussed. This is best done face to face. You should bring with you to the appointment any documents that you think maybe relevant for us to consider when advising you, for instance the original or copy of the Certificate of Title or the original or copy of a prior will or power of attorney.
POWERS OF ATTORNEY
There are normally three Powers of Attorney clients are interested in:-
- General Power of Attorney
This is a Power of Attorney where a person gives another person the power to conduct their affairs in a general way. A good example would be a person leaves Australia for an extended trip overseas and gives this power to someone they trust and who knows their affairs.
- Enduring Power of Attorney (Financial)
This covers the situation in case a person becomes mentally incapacitated to deal with their affairs or to sign documents. It must be made when a person is of sound mind and if there is any doubt medical opinions should be obtained to verify mental capacity. Otherwise it may be too late. There should also be a substitute Attorney in case something happens to the first Attorney or they don’t accept the position. Both Attorneys must accept their role in writing.As far as execution is concerned this document has two witnesses one of which must be a medical practitioner or someone who is authorised to witness Affidavits like myself.
- Enduring Power of Attorney (Medical Treatment)
This power covers a situation where a person may have legal capacity but is unable to make a medical decision. A good example would be a person involved in a car accident and because of their injuries is unable to adequately communicate to a Medical Practitioner. Their attorney will be able to do so. Again there should be a substitute Attorney.
As a will is only comes into effect by the death of a person it is important for a testator to have not only a will but Enduring Powers or Attorney for Financial and Medical Treatment. Many problems could, and do, arise if they do not.
It is important the work be done competently and by a qualified Legal Practitioner. A preliminary meeting should be organised to discuss the individual’s particular circumstances, wishes and needs.
It is also important that the documents be executed at the Legal Practitioner’s office so that it can be verified that they have been executed properly.
The original documents are usually kept in our strongroom for safe keeping and a copy given to the client’s.
Anyone who is contemplating making a will or powers of attorney, or contemplating revising them, should make an appointment at out office on 5221 6788.