Wills, Probate and Power of Attorney

Wills

By making a will you exercise your legal rights of directing to whom and in what manner your property and belongings should be distributed upon your death. Further, by making a will you will also appoint someone to look after the administration of your estate pursuant to the terms of your will.
Although a will doesn't need to be drawn up by a Solicitor, an effective will requires careful drafting. At Portelli & Co we consider the individual factors specific to you so that your will can be drafted in a way that will achieve your objectives so that your assets will be distributed as you wish, and protect your estate against people who may be entitled to challenge your will.
There are various tools which can be used in order to reach your objectives so that you estate is distributed in a way that you would choose. In order for these tools to be used effectively it is wisest to consult one of our experienced Practitioners at Portelli & Co.

Such tools include:

  • Legacies : Gifts of money
  • Bequests : Gifts of items
  • Devises : Gifts of land
  • Grants : Life interests and limited interests in assets
  • Residue : Allocation of the balance of the estate after specific bequests have been met.
  • Trusts : Testamentary Trusts, either discretionary, or with fixed entitlements.

If you don't leave a will you are said to die "intestate". Your estate will be divided according legislation, which may not be in accordance with your wishes.

The advantages of making a will are:

  • You can ensure that your property is distributed the way that you wish, including gifts to friends, charities and persons not being the next of kin.
  • Give directions to an executor regarding funeral arrangements and organ donations.
  • Avoid additional expense, difficulty, delay and possible anguish in relation to winding up your estate.
  • Ensure that a person you choose handles all of these matters.
  • Appoint a guardian of infant children.
  • Review your affairs generally to take account of relevant taxation laws.

The disadvantages of not having a will are:

  • You have no control over the distribution of your estate;
  • The rules of intestacy may not accord with your wishes;
  • Partners, step-children, friends and favourite charities may miss out;
  • Your children or other minors in your care may not receive the protection you would have desired and you will not have the opportunity of appointing a guardian for them;
  • Incapacitated members of your family and their own assets may be put at risk;
  • Your estate may be administered by someone you would not want to appoint.

At Portelli & Co, we will not only ensure that the will is properly drawn up and correctly signed and witnessed, but will also discuss with you such matters as:

  1. The selection of an executor and the appropriate powers to be given to him or her
  2. The selection of a guardian for your infant children and how funds available for the children's maintenance, education or benefit should be invested
  3. What assets you can dispose of by your will and what assets you cannot, such, as those owned by a family discretionary trust
  4. Minimising capital gains tax liability
  5. What liabilities you need to provide for in your will and whether your life insurance is adequate in the circumstances
  6. Who could make a claim against the estate and how best to avoid a testator's family maintenance claim
  7. The options for providing for a de facto spouse, for second marriages and blended families
  8. The appropriate age for beneficiaries who are minors to take their share of the estate
  9. Funeral arrangements
  10. Where to keep your will, who should know where it is kept, and in what circumstances it should be reviewed
  11. The uses and benefits of having one of the available types of Power of Attorney

 

Probate

"Probate" is the term given for the legal confirmation that your will is valid, it is given by the Registrar of Probates, an officer of the Supreme Court. In regards to small estates, it may not be necessary to obtain probate. If the only asset is a bank account, bank rules allow a small account to be closed without probate. If a persons assets are all jointly owned no probate is required. A grant of probate only involves property or assets owned solely by the deceased.

Executors

Where your spouse, or another person, is to be named as your sole beneficiary, it will often be appropriate to name that person to act as your sole executor. There is nothing to prevent a beneficiary from being an executor. Otherwise and in succession you should appoint two adults members of your family, friends or professional advisers to act jointly, or a trustee company, as your executors.
Certain work must be done by an executor with the help of Portelli & Co and others.
Such things include:

  1. Attending to funeral arrangements
  2. Notifying any banks, insurance and other companies and other relevant organisations of the death
  3. Ascertaining and taking control of all assets
  4. Identifying the beneficiaries and their entitlements
  5. Obtaining the grant of probate or letters of administration
  6. Resolving all estate liabilities and disputes which will include settling final income tax liability and may also include waiting for the six-month period after the grant during which time claims against the estate can be started
  7. Distributing assets to beneficiaries either by transfer or by sale of assets and distributing moneys realised
  8. Investing funds or managing the assets of the estate on behalf of beneficiaries
  9. Keeping property held in trust (eg. for the life of beneficiaries) in good repair, insured and covered for rates and taxes
  10. Acting impartially and in the best interests of all beneficiaries


Portelli & Co can help the executor in fulfilling their duties by:

  1. Advising on whether the will appears to have been correctly executed and advise on any potential claims in this regard
  2. Advise on the correct meaning of the will including any potential claims under Part IV of Administration and Probate Act
  3. If there is no will advise on applying for letters of Administration
  4. If the executor named has died advise on applying for Letters of Administration with the will annexed
  5. Assist the executor in compiling a full list of assets
  6. Provide titles and other documents relating to property
  7. Assist in obtaining probate by attending to preparation, signing and lodgement of probate documents
  8. Advise on capital gains tax effects (at present there are no other death duties)
  9. Assist with managing the estate including advice on ongoing trusts for life tenants or other contingent interests
  10. Advice on executors obligations and beneficiaries rights, prepare final tax returns and estate tax returns, attend to transfer of assets or sale of assets, advise on claims of others and claims by the estate for Work Cover, protection of the executors during and on completion of administration

Beneficiaries

If you are entitled only to a specific gift of land, money or goods you are not entitled to general information about the estate. You are entitled to expect reasonable diligence from the executors and if a gift has not been transferred within a year after death, then some explanation should be provided.

If you are entitled to a share in residuary estate (ie. in the estate left after specific gifts) you are entitled to:

  1. A copy of the statement of assets and liabilities
  2. A copy of annual accounts
  3. Inspect share certificates, bank books, land titles, art works, jewellery etc. and to see any valuation of these things
  4. A copy of the will


If you request copies of these documents you must be prepared to pay the costs involved for the estate in providing this information.
Beneficiaries who have particular wishes in relation to funeral arrangements ought to consult with the executor at an early stage to establish whether there are any specific directions in the deceased's will.
A gift of income-earning property (such as rented land or shares) carries with it the income earned from the date of death. Likewise, the beneficiaries must bear all costs of maintaining the asset after the date of death.

Contesting Wills

The law has now changed, in that originally spouses and children were able to challenge provisions in a will and make a claim. Now the class of individuals that can challenge a will is unlimited. The key elements to consider are if the deceased had a moral obligation to make provision for that person and the financial needs of that person.

If you believe that you have a claim, consult Portelli & Co, who will be able to advise and take action on your behalf in relation to your entitlement. As a general rule, your costs to contest a will are paid out of the estate.

Powers of Attorney

Powers of Attorney can become invaluable documents should you become incapable of looking after your own affairs. Like an Executor, an Attorney or attorneys can be any adult person, friend, relative or even a Solicitor at Portelli & Co.
There are four main types of Power of Attorney:

  • Specific or General Powers of Attorney
  • Enduring Power of Attorney
  • Enduring Power of Attorney (Medical Treatment)
  • Enduring Power of Guardianship


Whereas wills operate from the date of death, Powers of Attorney are designed to look after a persons financial and property / asset matters before the date of death.
Powers of Attorney can be a very useful tool, as it is a legal document authorising a person to act on behalf of another person. It enables the person named in the document to do anything that the person granting it is entitled to do.
Powers of attorney are most frequently used when people go overseas, on a holiday, when they are required to attend hospital for a medical procedure, or if there is a likelihood that the person granting the power of attorney may become incapacitated in the future.
It is important that the type of power that you can convey with a power of attorney is fully understood before you sign such a document. You must be satisfied that the person to whom you grant a power of attorney is fully trustworthy and enjoys your full confidence.
You may want or require a Medical Treatment Enduring Power of Attorney which will enable your attorney to make decisions about the provision or withdrawal of medical treatment if you become incapable. The person holding the Medical Treatment Enduring power of attorney will not be permitted to refuse palliative care or medical treatment that is clearly in the best interests of the donor of the power.
All powers of Attorney must be witnessed correctly and have the specimen signature of the person granted the power appear on the document. Powers of Attorney will remain effective until they are withdrawn or revoked by the completion of the document called a "Revocation of Power of Attorney".

At Portelli and Co we are experienced in advising you with respect to your needs and will assist you in making the right choice for your situation.