Saturday, 20th March 2010
A Will is a written document that sets out your wishes for the distribution of your property (sometimes called your 'estate') when you die. It looks after your family and it is your opportunity to make sure things go smoothly on your death.
There are strict legal formalities to be complied with in making a Will. If these are not complied with then this creates many difficulties on your death and the risk that the paper that you signed will not be accepted as your Will.
Typical components of a Will include:
Marriage revokes any Will previously made unless the Will refers to contemplation of that particular marriage. People often separate but forget to change the Will which could mean that their spouse still inherits their estate. When a divorce becomes final that part of your Will that relates to your former spouse is revoked not the whole Will. It is important to seek legal advice about the impact of this on your Will. Whenever a married couple separate, each party should review his or her Will.
You should also review your Will, Power of Attorney and any other authority that you have given you spouse or partner to sign anything on your behalf.
If you die without a valid Will your property is distributed to your family according to legislation. These are commonly called the Intestacy Rules. It is rare that those rules are anything like what most people write in their own Wills. These rules are set out in Part 3 of the Succession Act (which is on the Lawers page).
As you have not named the Executor and Trustee, there are further Rules to determine who should be appointed. Many people (mistakenly) assume that the Administrator can only be the Public Trustee. The process of dealing with the estate is more complicated. Children get their inheritance at 18 years of age - whilst most Wills stipulate an older age.
Information on Organ Donation and how to register, including on-line registration.
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Lawyers will often look at Wills in the broader context of your general affairs.
Do you have a Family Trust or an interest in a Family Business? What is going to happen to this when you die? Will other family members be able to carry on the business?
Where outsiders are involved in your business - is there any understanding about what is to happen should you or they die or become incapacitated? Is that documented? How is it funded?
Have the tax implications been considered? Sometimes it is better to move some events forward so that the tax consequences or benefits can occur in your lifetime.
Another issue is whether your superannuation is likely to be paid to your Estate or who the Trustees of your superannuation fund are likely to pay the death benefit to.
Lawyers do not recommend that anyone uses a Will Kit. Lawyers make more money out trying to fix mistakes made using Will Kits than they would have made writing a good Will in the first place. Not all mistakes can be fixed.
If you die leaving a Will and substantial assets, then it is likely that it will be necessary to register your Will with the Probate Office. That procedure is known as obtaining Probate. If your assets are smaller and don't involve land, it may be possible for the Executor to gather together your Estate and distribute it without having to go through that process.
Administration is a similar process with the Probate Officewhere there is no Will.
The next-of-kin, Public Trustee or a commercial Trustee Company can be appointed as the Administrator.
The most common ground of dispute about an Estate is under the Sucession Act.
There is a limited category of spouses and defacto spouses, children and dependants who are able to apply. Challenges can arise either because somebody was left nothing, or because what was left to them was not enough.
The provision under the Will (or under the Intestacy Rules if there is no Will) must fail to provide adequately for the applicant's proper maintenance and support. The Court must decide that it is "proper" to make an Order.
There are strict time limits for making an application and you should seek legal advice as soon as possible. Many such disputes, if handled quickly and sensitively, are resolved by discussion, negotiation or mediation rather than by litigation.
EditorOur Wills Attorneys editor is Vahid Humphrey of Andrew Rogers Lawyers. Tel: (08) 8382 4349 |
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General Information is available from:
Most people sign what is known as an Enduring Power of Attorney. ("Enduring" means that it continues to operate even if later on you are incapacitated).
With this document you empower one or more people to:
You don't have to have the same people make both types of decisions. You can choose to impose limits on the authority you give your attorney. You might choose to stipulate that they can act immediiately in financial matters - or might delay this until you are incapacitated.
An Attorney's power to make decisions concerning your health and welfare is always delayed unil you are incapacitated.
It is a very serious matter to appoint a Power of Attorney. You should seek advice on this and consider the many options available to you before choosing who you appoint and the terms that you appoint them on.. It is often impossible to do anything about it after the event if your Attorney acts foolishly or dishonestly.
Some adults have be impaired in making decisions after their personal and health care decisions. This lack of decision-making ability, known as impaired capacity, may be caused by intellectual or psychiatric disability, acquired brain injury, dementia or temporary illness.
In these situations the Queensland Civil & Administrative Tribunal (QCAT) may appoint a Guardian. QCAT can give the Guardian the power to make decisions on issues like where they live, the support services they receive, who they have contact with, taking medications, general health care and keeping them in secure circumstances.
Somebody who is appointed as the Guardian does not acquire any authority over the adult's financial affairs. To have that right the Guardian would either need to hold an enduring power of attorney or be appointed as the Administrator.
QCAT can appoint an Administrator to take charge of the financial and legal affairs of a person with impaired capacity.
They can be given authority to look after property, pay bills, make business decisions, manage investments and take care of the person's daily financial needs.
Somebody who is appointed as the Administrator does not acquire any authority over the adult's personal or health care affairs. To have that right the Administrator would either need to hold an enduring power of attorney for personal matters or be appointed as the Guardian.
The Tribunal independetly reviews decisions made by others about the involuntary treament of people suffering from mental illness.
There is more information about QCAT on the Lawyers page
Adult Guardian Website The role of the Adult Guardian is to protect the rights and interests of adults who are unable to make decisions for themselves.
QCAT usually appoint a family member, friend or relative to be the Guardian.. Wwhen none of these people are suitable or available, then the Adult Guardian may be appointed to make personal and health care decisions for them.
The Adult Guardian also investigates complaints if it appears that somebody with an enduring power of attorney is acting improperly.
The role of the Public Advocate promotes and protects the rights and interests of adults with impaired capacity. The Public Advocate looks after the interests of groups and does not deal with individual cases. He also watches to make sure that the best sytems are in place and working for the benefit of people with impaired capacity
