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South Perth Wills and Estates & Guardianship (SAT)

South Perth, Perth and Western Australia Wills and Estates Lawyers

 

At Vibe Legal, our Wills and Estate Planning team are experienced in providing advice on all matters relating to will-writing and estate planning. Vibe Legal lawyers understand that anything to do with legal issues can be complex and daunting. An important part of our service is breaking down legal complexities into practical information that is easy to understand.

Wills

 

In its simplest form, your will outlines how you want your assets to be distributed after your death, to make provision for those left behind. Without a Will, your assets may not be distributed in accordance with your wishes. If you have made a Will previously, you should ensure that it reflects your current wishes and family circumstances.

Did You Know?

 

If you have married or been divorced since you made your last Will, your Will may have been automatically revoked, even if that was not your intention.

Vibe Legal services South Perth, Perth and Western Australia. Our Wills and Estates lawyers can offer you legal advice in relation to your Will.

Probate

 

An application for a Grant of Probate is the process of submitting a deceased person’s Will to the Supreme Court of Western Australia formally recognising the deceased person’s will and the value of the assets of the estate, and granting the executor of the estate the authority to deal with the deceased person’s assets.  It is necessary to obtain a Grant of Probate in all cases, except for estates of minor value.

Vibe Legal services South Perth, Perth and Western Australia. Our Wills and Estates lawyers can offer you legal advice in relation to an application for a Grant of Probate.

Enduring Power of Attorney & Enduring Power of Guardianship

 

With an Enduring Power of Attorney, you can appoint someone to act as your attorney in the event of your subsequent incapacity or inability to deal with your financial affairs.  This can be important, for example, to ensure continuity in payment of bills and your lifestyle. If you do lose your legal capacity to deal with your financial affairs, without an Enduring Power of Attorney in place, it may be necessary for your family members to seek an order from the State Administrative Tribunal to determine who may legally deal with your financial affairs (See Guardianship and Administration Orders).

With an Enduring Power of Guardianship, you can appoint someone to act as your guardian in the event of your subsequent incapacity to make lifestyle and medical decisions.

Vibe Legal services South Perth, Perth and Western Australia. Our experienced lawyers can offer you legal advice in relation to Enduring Power of Attorney and Enduring Power of Guardianship.

Advance Health Directives

 

An Advance Health Directive is a document that contains your decisions about potential future medical treatment and can be relied upon in the event you do not have capacity to make those decisions at the relevant future date. You can make an Advance Health Directive in which you either provide consent or refuse consent, for future medical treatment.

Vibe Legal services South Perth, Perth and Western Australia. Our experienced lawyers can offer you legal advice in relation to Advance Health Directives.

Inheritance/Family Provision Act Claims

 

In Western Australia, certain persons may contest the proposed distribution of a deceased persons estate if the Will or law of intestacy (if there is no Will) fails to make adequate provision for them.

Under the Family Provision Act 1972 (WA) persons eligible to make a claim include:

  • Spouse or de facto partner of the deceased
  • Child of the deceased
  • Parent of the deceased
  • Grandchild of the deceased (limited
    circumstances)
  • Stepchild (limited circumstances)

There are strict time limits in which a claim under the Family Provision Act 1972 may be brought.

Vibe Legal services South Perth, Perth and Western Australia. Our experienced lawyers can offer you legal advice in relation to claims under the Family Provision Act 1972.

Guardianship and Administration Orders

 

If you are concerned that a member of your family may have lost capacity to deal with their financial affairs or make lifestyle and medical decisions for themselves, it may be appropriate to seek an order from the State Administrative Tribunal to have someone appointed to make those decisions on their behalf.

The circumstances in which the State Administrative Tribunal will intervene and interfere with a citizen’s right to make their own decisions are limited.

Vibe Legal services South Perth, Perth and Western Australia. Our experienced lawyers can offer you legal advice in relation to Guardianship and Administration Orders.

 

wills and estates perth

HOW DOES THE MAKING OF A LEGAL WILL SAFEGUARD THE FUTURE OF YOUR LOVED ONES?

WHY DO I NEED A WILL?

A Will is a legal document in which you explain what you want done with the things that you own solely in your own name when you die.

These things typically consist of property, namely real estate, money, investments, and personal or household belongings that you own. A Will ensures that your testamentary wishes are carried out upon your death.

IS IT SIMPLE TO MAKE A WILL?

Although making a Legal Will can seem simple, it’s actually a complex legal document. To make a Will effective requires the person drafting to have a good understanding of property ownership rules and the law about Wills. There are rules that must be followed, no matter how simple the Will is, otherwise it may not be valid. Another important feature of a Will is that the words used must be chosen carefully so the Will is clear and unambiguous.

WHAT ARE THE FORMAL REQUIREMENTS FOR MAKING A WILL?

The formal requirements for making a valid Will are that:

  • the Will must be in writing
  • the Will must be signed by the Testator/Testatrix on each page of the Will and at the end of the Will
  • the Testator’s signature must be witnessed by two independent witnesses. Anyone who is a beneficiary cannot witness a Will.
  • the witnesses must sign the Will in the presence of the Testator and each other.
WHAT SHOULD BE IN A WILL?

A Will should specify that it is your last Will and that you revoke any previous Wills.

It should appoint one or more persons to be your executors/s. Your Will should provide for payment of funeral expenses and any debts.

It should then state how you want your property distributed, either by naming the item and to whom it is given, or by giving a person a certain amount or percentage of the total value of your property.

If your Will contains specific gifts, it should also state what is to happen with any remaining assets (the residue) of the estate.

Wills can include other requests, demonstrating the Testator’s intention, such as funeral arrangements, preferences for disposal of the testator’s body, and the appointment of a guardian to look after the testator’s children.

WHAT HAPPENS IF I DON’T MAKE A WILL?

When a person dies without a valid Will, the law sets out how their property will be shared out after all the debts have been paid. So without a valid Will you have no direct say over how your estate is distributed after your death.

Without a Will, it can be hard to work out who should apply for permission to deal with the deceased’s estate. The spouse, de facto partner or next of kin should apply to the local Supreme Court for Letters of Administration. The application is quite complicated and may require a lawyer. If the application is successful the court grants Letters of Administration to someone who then has the authority to deal with the estate.

WHAT IS AN “EXECUTOR” AND HOW DO I CHOOSE THEM?

The executor is someone you nominate to deal directly with your estate; they pay your debts and divides what remains of your estate among the “beneficiaries”, the people named in your Will that will receive a share of your estate.

Being an executor is a very serious responsibility and can take a lot of work and speaking generally they should;

 

  • answer to the beneficiaries for the management of the estate and account for the property (including all money) of the deceased.
  • organise your funeral and burial, as well as make any decisions about your personal belongings and property.
  • deal with your finances, such as paying your debts, closing your bank accounts and doing your taxes in the year of your death, and the year following your death for your estate.
  • Finally, if there are children under 18, their well-being must be looked after.

 

You should always consider choosing an executor that you trust and who is likely to still be alive when you die. They can be a trusted family member or friend.

It helps if he or she is also a good book-keeper and an efficient communicator. If you prefer, you can appoint more than one executor and both can act together as co-executors. You should also appoint an alternate executor if the first executor isn’t able to act. If you have a complex estate or investments or need someone to take over the operation of a company, you should name a professional executor like a trust company.

I HAVE YOUNG CHILDREN UNDER THE AGE OF 18 YEARS. DO I NEED TO APPOINT A GUARDIAN IN MY WILL?

A guardian will be appointed to look after your children if they are younger than 18 when you die. This will avoid confusion in your extended family as to who should care for your children if both you and the other parent die before the children become adults. It is important when making a will though that you must make sure your appointed guardian agrees to be the guardian. It’s also especially important to name a guardian if you’re a single parent – otherwise the court could end up appointing someone you might not have considered or want.

CAN MY WILL BE CHANGED AFTER I DIE?

If you Will doesn’t properly provide for your spouse or de-facto spouse, or children or parent, they may be able to make a claim under legislation in your particular State or Territory. If successful, the Court has the power to change your Will to give them a share of your estate. Therefore, if you intend excluding any such dependents from your Will, or giving them less than they might reasonably expect, be sure to consult with a lawyer about this situation. An experienced lawyer can advise you on how to avoid claims on your estate under these circumstances.

WHEN SHOULD I GET A LAWYER TO HELP ME?

Where your estate planning needs are more complex than simple an experienced estate planning lawyer will know about the rules that apply that will create the best Will for your exact needs. Vibe Legal will gather your information at the outset and then you will be contacted by one of our qualified lawyers, who will make an appointment to sit down with you and address each area of need. Importantly, you will have the peace of mind of knowing that your Will is properly drafted and valid, and that your estate will be paid out according to your wishes.

WHAT INFORMATION IS NEEDED FOR A WILL TO BE WRITTEN?

It helps if you have the following information ready before you sit down to fill out the information form for Vibe Legal:

 

  • A list of everyone in your immediate family with their full names and contact information, their relationship to you and the ages of all your children, including stepchildren.
  • The names and addresses of any other people or organisations to whom you want to give gifts or bequests.
  • A list of your assets, such as your home, car, investments and any personal items of significant value. It is important to describe how you own any property (for example, whether you own it alone or together with someone else).
  • Details of any superannuation and insurance policies you own, and specifically who the beneficiary is.
  • The person or company you want to be the executor and, if relevant, the guardian.
WHY IS IT SOMETIMES IMPORTANT TO UPDATE MY WILL REGULARLY?

A well-drafted Will anticipates different scenarios and plans for these (for example, what happens if an adult child or grandchild dies before you).

You should, in any event, still think about changing your Will whenever your financial or personal circumstances change, or if there is a change in the beneficiaries.

For example, if you made a Will when your children were younger and you named your parents as guardian and executor, when your children become adults, you may no longer need the guardian clause and you might want your children or a sibling to be executor instead. It is a good practice to review your Will every three to five years to ensure that it still reflects your current wishes.

IS MY CURRENT WILL STILL VALID WHEN I GET MARRIED?

If you get married, it is usually the case that your existing will is automatically revoked.  If this situation applies to you, you should consider whether you need to prepare a new will, after your marriage.

However, you can avoid a situation where marriage will revoke your existing will, if your will is made in ‘contemplation of marriage’.

If you think you need to prepare a will in contemplation of an upcoming marriage, we recommend your take appropriate legal advice.

If you are concerned that your will may have been revoked through your subsequent marriage, we recommend you take appropriate legal advice.

WHAT IS ENDURING POWER OF ATTORNEY AND WHY WOULD I NEED IT?

Along with your Will, an Enduring Power of Attorney (EPA) is one of the most important documents you can execute in planning for your future and the future of your loved ones.

Unlike a standard Power of Attorney, an Enduring Power of Attorney remains valid after the donor loses legal capacity, for example due to dementia, stroke, being in a coma, Alzheimer’s Disease, mental illness, accident, trauma, acquired brain injury, or for other reasons. Contrary to popular belief, if you become incapable of managing your own affairs, your spouse or close family member is not automatically entitled to act on your behalf – hence the importance of an EPA.

Like any important document, you should not wait until unforeseen circumstances force you to prepare your Powers of Attorney in haste. It should be prepared and signed while you are in good health and can take the time to make the right decisions.

WHAT IS ENDURING POWER OF GUARDIANSHIP AND WHY WOULD I NEED IT?

An Enduring Power of Guardianship (EPG) allows you to appoint someone to make personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making these decisions yourself.

This person becomes your Enduring Guardian and may make decisions specifically about:

 

  • where you live (whether temporarily or permanently), who you will live with and who you will associate with;
  • whether you will work and decide what education and training you will receive;
  • any legal proceedings relating to you;
  • what personal services you should have to support and assist you; and
  • giving or withholding consent, on your behalf, to any medical, surgical or dental treatment or other health care (including a life sustaining decision or palliative care).

 

However, an enduring guardian cannot make decisions for you on property or financial matters. For this you’d need an Enduring Power of Attorney.

SO WHERE SHOULD I KEEP MY WILL?

You should store your original Will in a secure safe place, like a safe or safety deposit box, where it cannot be stolen, altered or destroyed.

Alternatively, you can store it with your accountant or lawyer, so that you have a permanent, safe location. We may retain a true original copy or original at our office if requested. Your original Will is what your executor will need to present to the Probate Registry in future, not a copy. It is recommended that you keep other important documents with your Will too, so your executor has what he or she requires when the time comes.

WHAT IS THIS THING CALLED PROBATE?

Probate is the process by which the executor must apply to the Courts to confirm that a Will is legally valid; it is the process of proving and registering in the Supreme Court the last Will of a deceased person.