Wills, Probate and Estates
Kilcoyne Lawyers are fully qualified and experienced to help an Executor appointed by a Will to make an Application for Probate.
We will carefully explain all the steps that need to be taken in order for a Grant of Probate to be made by the Supreme Court of NSW.
Once Probate is granted to the Executor, we can assist with collecting the assets of the estate, paying outstanding bills or debts, and distributing the estate to the beneficiaries named in wills.
If there is no Will, then Kilcoyne Lawyers can help you to apply to the Court for a grant for Letters of Administration. Once an Administrator is appointed by the Court, we can assist with collecting the assets of the estate, paying all just debts and distributing the remainder according to the rules of intestacy under the Probate and Administration Act.
Family Provision Applications
In recent years, changes to the Succession Act have increased the number of categories of ‘eligible persons’ who can apply for family provision, when adequate provision should have been made, but was not made under the will. Specific eligible persons can apply to the Supreme Court for a share of the estate of the deceased for ‘proper provision for their maintenance, education and advancement.’
What’s in a Will?
So, what is all the fuss about – why do I need a will?
A Will is a written document which sets out how a will-maker wants their property distributed after death. A will makes it easier and quicker for your family to pay outstanding bills and funeral expenses, as a Power of Attorney will cease to operate and bank accounts are usually frozen when a person dies. Most banks will not release funds without a grant of probate or administration, if the account holds over a set amount.
Also, in the devastating event that two or more people die at the same time, and the order of their death cannot be determined, the law in NSW presumes that the older person died first. Where property is held as joint tenants, in an era where blended families are now commonplace, this can produce an unintended result, where the family of the older person can be left with nothing.
There are some important issues to consider about making a Will. The Succession Act sets out the formal requirements for making a valid Will:
You must have mental capacity (be of sound mind and judgement), know who is part of your immediate and extended family, and understand that you are giving your property to the beneficiaries
It must be in writing
It must be signed by the will-maker in the presence of two or more witnesses, present at the same time with the will-maker
A beneficiary should not witness the will, as they may lose their entitlement under the will. However, recent changes introduced by the Succession Act now allows a spouse of a beneficiary to witness wills.
When nominating a beneficiary/ beneficiaries for distribution of certain personal property and/or real estate, you must carefully consider all persons who may make a claim on your estate even if you do not wish to make provision for them.
A parent can nominate someone to be the guardian of children under the age of 18 years.
Funeral and burial preferences can be put in the Will, but these directions are merely declaratory. Ultimately, it is the decision of the Executor appointed under the Will to make arrangements for the funeral and disposal of the body. If any conflict between your partner and family is anticipated, the Executor should be carefully chosen and these matters discussed in detail so that your wishes are carried out.
In this respect, it is better to consider making a Will earlier, rather than later.
Power of Attorney
It is important to know the difference between appointing a Power of Attorney and Appointing a Guardian, because the powers conveyed operate in different areas.
Enduring Power of Attorney
An enduring power of attorney gives your attorney the legal power to act on your behalf for money or property matters while you are alive, but it must be carefully drafted so that it operates only if and when you lose your ability to make decisions about those matters.
Under a Power of Attorney, you can appoint your Attorney to operate your bank accounts, pay your bills, and buy and sell your property, but it does not give that person (the Attorney) any power to make decisions about your health care.
Upon death, a Power of Attorney ceases to operate. This means that your Attorney can no longer access your accounts and pay bills that may fall due close to your death.
Appointment of a Guardian
You need to appoint a Guardian to make decisions about your health. The Guardian can then make treatment decisions on your behalf when you become too unwell or are unable to make these important decisions yourself. Importantly, you need to have these documents prepared BEFORE you become mentally incapacitated for them to be legally binding.
Advance Care Directive
An Advance Care Directive (ACD), previously known as a ‘Living Will,’ sets out your wishes about your future medical treatment, if you lose the mental capacity to make those decisions yourself. This can occur if you develop a serious illness, suddenly or over time, or you are involved in a catastrophic motor vehicle accident, or other event where you may become unconscious.
In NSW, an ACD is not binding, for instance, in the case of an emergency, a doctor can override the ACD to save your life. However, an ACD is likely to be strongly persuasive for all those involved in making medical or life threatening decisions including Health Care Professionals and the Guardianship Board.
The NSW Health Department is making arrangements for ACD’s to be included in electronic medical records, so that there is a permanent record of your wishes available to health professionals in the case of an emergency, so that you don’t have to carry around an ACD with you everywhere that you go.
The ACD prepared by Kilcoyne Lawyers is a unique and more informative ACD than any other type of ACD available. Michelle has drawn on both her experience and knowledge in the Health Care System and specialisation in Intensive Care Nursing, and her experience as a Solicitor. When it is appropriate, you can elect whether to have life-saving treatment or comfort care, depending on your wishes and circumstances.
For your convenience, Kilcoyne Lawyers have put together an all-inclusive package with a Will, Power of Attorney, Appointing a Guardian, and Advance Care Directive.