Wills and Estates
Wills, powers of attorney & estate planning
Clancy & Triado have a long history of estate planning, Will preparation, and Wills and estate challenges.
It is most important that you have a validly executed Will. Without a Will, you have little control over the beneficiaries of your estate. Even if you have insignificant assets, there are many issues to be dealt with in a Will, When a person dies without a Will (known as ‘intestate’), the estate will be distributed according to the provisions of the Administration and Probate Act 1958.
For a Will to be valid, several factors need first to be established:
-
The testator (person making the Will), has capacity, which can be established by many factors including:
- Being over 18 years of age
- Being of sound mind
- Having an understanding of the nature and effect of the proposed Will
- The extent of the property being disposed
- Have an intention to make a Will
- Have the knowledge and approval of the contents of the Will
- Follow proper formalities (the Will must be in writing and signed by the testator and two independent witnesses)
Clancy & Triado can :
-
Prepare your Will to ensure that it operates as you intended, with the least possible chance of a challenge.
- Provide you with correct, current and comprehensive advice all relevant issues so that your estate, your future care and the welfare of your family is most adequately protected.
- Advise you of the best options in circumstances of: second marriages; blended families; difficult family members; and family members with financial and/or other troubles.
- Discuss with you the role of executors and administrators and work with you to establish the best placed appointments to those roles.
-
Advise Executors of Wills as to the proper execution of their role. The job of an Executor can be complex and we strongly recommend you obtain legal advice prior to conducting this role. There are often ambiguous clauses in Wills and competing interests of various beneficiaries.
- Advise Executors in relation to your legal obligations and duties (such as securing properties)
- How to minimise any personal liability of the Executor
- Ensure appropriate reimbursement for expenses occurs from the estate to the Executor
- How to appropriately reduce the inconvenience of the role of being Executor
Our advice to you will include consideration of many issues, such as:
- Insurance possibilities and referring you to financial planning experts if you wish
- Discussing creating and/or changing binding death nominations in superannuation policies and ramifications of such nominations and what occurs if you have not made such a nomination
- Advising you of commercial agreements available to deal with any interest you may have in a business so that your share can be sold or purchased upon your death
- Advising you of the appropriate mechanism for passing on your various financial interests, such as testamentary trusts
Wills can include many issues of relevance upon your death, including:
- How your estate is to be divided
- Your preferred guardian for your children under the age of 18
- Your preference of how your funeral or cremation is conducted
The Wills and estate experts at Clancy & Triado can advise you of the best, most cost efficient and legally binding arrangements in your personal circumstances.
Will challenges
We can advise you regarding challenging a Will of a deceased person. We can assess your circumstances and determine whether you have received 'inadequate provision' under a Will and whether the deceased had a moral duty to provide for you.
We can advise you how to challenge the validity of a Will before probate has been granted and discuss with you the option of lodging a caveat with the Registrar of Probates. The caveator must file grounds of objection to a Will within 30 days of an application for probate, so we recommend you obtain urgent advice from our Wills and Estates experts at Clancy & Triado.
Power of attorney
We usually advise clients who are preparing a Will, to also prepare a power of attorney, which is a document giving power to someone you elect to legally act on your behalf whislt you are alive (albeit possibly too ill to provide instructions). We can advise you of the differences between:
- General powers of attorney
- Enduring medical powers of attorney
- Enduring financial powers of attorney
- Enduring powers of guardianship
We can advise you of the best options for your personal circumstances.
Estate planning
In addition to preparing Wills and Powers of attorney, Clancy & Triado can advise you in relation to any interest you may have in a company; trust; superannuation funds and/or jointly held real property.
We can advise you whether or not a testamentary trust is appropriate in your circumstances. A testamentary trust is an instrument for allowing a gift in a Will via a trust, with the trustee being in control of distribution of the gift to the nominated beneficiary upon the death of the testator. The trust arrangements are be set out in the Will and adhered to by the trustee.
The numerous benefits of testamentary trusts include:
- Being able to have your estate managed for your children to ensure their inheritance is appropriately dealt with until they reach a certain age.
- Attracting tax benefits where inherited money is distributed to beneficiaries with the lowest income and marginal taxation rates and those whom qualify for income tax free thresholds etc.