Wills & Estate Lawyers

A will is a legal document which sets out how you want your affairs managed after your death. You can use a will to specify what happens to your assets (including financial assets, real estate and any personal items). It can also set out who should care for your children.

Having a will is essential because it gives you control over how your estate is divided after you’re gone, for example, who gets what and who cares for the kids.

You also get to choose who is responsible for managing (and winding up) your estate. This person is known as the executor.

Having a valid will is the most effective way of making sure your wishes are met.

Many people use will kits for a do-it-yourself option. While it’s true that a will kit is cheaper than getting a lawyer to draft your will, there are many issues with using will kits.

Because testamentary laws (laws about making wills) are different in each Australian state and territory, the legal requirements for making a will can also vary between these jurisdictions. Will kits tend to be a one-size-fits-all arrangement. They may not take into account the legal differences between jurisdictions.

Each jurisdiction has strict requirements about:

• How a will is signed
• Who is allowed to witness the will
• Where each person places their signature on the document

These requirements attempt to ensure that the person making the will (the testator) is making the will freely.

Even the smallest hiccup in the signing stage has the potential to cause difficulties when the will is going through the probate process. A court may declare the will invalid, or require further evidence to prove the will.

These things cost time and money, and there’s less for your beneficiaries to inherit. Experienced wills lawyers carefully oversee the will signing to reduce the risk of issues down the track.

A lawyer will also help you:

• Identify the property which can be dealt with in a will, as not all property is eligible
• Assess how you leave your property and whether this will cause issues after you’re gone

For example, think about taxation implications. Or a family member might challenge the will because they believe they should have received more. This type of challenge has the potential to tie up your estate for years. Legal fees could erode it. Thinking about these issues at the right time helps ensure that your wishes meet legal requirements.

In short, you may save a few hundred dollars by using a will kit instead of a lawyer, but any issues may cost your estate thousands and thousands of dollars later. Getting a lawyer to draft your will is an effective way to protect your estate.

It’s a good idea to check your will regularly to make sure it continues to reflect your wishes.

Your will should be updated when your wishes change, or when there’s a significant life event. For example:

• Changing address
• Getting married or your second anniversary in a de facto relationship
• Getting divorced or separating from your partner
• Having a child

If you’re uncertain whether you need to update your will, it’s best to get legal advice. We’ll help you work this out. Contact us for more information.

An executor is a person you appoint in your will to wind up your estate after you pass away. They will be responsible for:

• Finding all your assets
• Paying your debts (which may include selling some assets and paying tax)
• Applying for probate
• Making sure your estate is distributed according to your will

There are strict rules about what an executor must do and what they can’t do.

When you appoint an executor, it’s crucial that you:

• Speak to them about the role
• Tell them where to find your will

We help executors through this process and assist with probate applications. Ask us for more information about executors’ responsibilities.

Probate is formally known as a grant of probate. It happens when the Supreme Court recognises the will (this means it’s satisfied the will is valid). The grant of probate gives permission to the executor to wind up and distribute the estate.

A deceased estate can’t be distributed without the grant of probate.

The Supreme Court will look closely at the will. It will carefully examine whether it’s correctly signed and witnessed. The Court will do everything necessary to satisfy itself that the will is valid and was made freely. It will reject or question any will that has irregularities.

It’s essential to make sure a will is drafted correctly and signed and witnessed according to strict legal requirements.

If you don’t have a will when you pass away, the law says that you are intestate. An intestate estate is a deceased estate with no will directing how to deal with it.

South Australian law will step in because you can’t get a probate order for an intestate estate. The Court will appoint an administrator who has similar responsibilities to the executor. But the administrator will distribute the estate according to the requirements of the law, not necessarily according to your wishes.

Sometimes, the administrator is one of your family members. But when there’s no one available or willing to act, the Public Trustee is appointed. The Public Trustee will administer your estate and charge a fee, which is paid from the estate.

The best way to ensure that you control what happens to your assets is to have an up-to-date, valid will.

An advance care directive (ACD) is a legal document. Adults can make ACDs.

An ACD records your wishes about:

• End-of-life arrangements (for example funeral arrangements and medical care)
• Future health care
• Other personal issues, for example, grooming, music preferences
• Where and how you will live

You can appoint someone to make decisions for you if you’re unable to make your own decisions. That person is known as a substitute decision maker and can use the ACD as a guide. A substitute decision maker is often a spouse, close relative or someone who knows you well.

The ACD can be used if you can’t make your own decisions.

An ACD will replace other directives which you may have previously made, for example, an enduring power of attorney or a medical power of attorney. But these directives are still legally effective if you haven’t made an ACD.

Speak to us for more information about ACDs.

A power of attorney is a legal document. It allows you to permit someone else to act on your behalf if you can’t act for yourself. For example, if you’re overseas or if you’re too ill to make your own decisions. It’s a delegation of your power, so you’re known as the delegate.

The person you appoint is known as your attorney. (Note that this term has a different meaning from its American usage, in which an attorney means a lawyer.) Your attorney should be someone who knows you well and who you trust.

A power of attorney can be used to manage your legal and financial affairs. Your attorney can show the document to banks, government authorities and other institutions as proof that they have permission to act on your behalf.

As an adult, you can make a power of attorney at any time. It’s only activated when you can’t act for yourself. It expires when you die (and then your executor takes over if you have a valid will).

Because a power of attorney is a legal document, it must satisfy special requirements. For this reason, a lawyer should prepare it.

Speak to us about your power of attorney.

If you were left out of someone else’s will, or you believe you should have received more of their estate, you may be able to make an inheritance claim. These claims are also known as deceased estate claims and family provision claims.

Under South Australian laws, you have six months from the date of the grant of probate to make a claim. You should do so as soon as possible, to stop any assets being distributed or sold within the six months.

Contact us urgently if you’re considering making an inheritance claim.