Wills & Estates

Overview of Wills & Estates

Wills and estates are critical components of effective estate planning. A will outlines your wishes regarding the distribution of your assets after your death, while estate planning ensures that your assets are managed and distributed according to your wishes. Properly drafted wills and comprehensive estate plans provide peace of mind and safeguard the future of your loved ones. Understanding the importance of these legal tools is essential for anyone looking to secure their legacy.

Wills

What Is a Will?

A Will is a legal document in which you decide how you want your property and assets (your Estate) to be managed and distributed, who will care for your dependents, and who will be the guardian of any minor children upon passing away. A Will allows you to specify exactly who gets what part of your Estate (your Beneficiaries). A Will also allows you to name who will have the responsibility for carrying out your wishes about how your Estate should be distributed (your Executor).

Do I need a Will?

Making a Will is the only way you can be sure your Estate is distributed according to your wishes after you pass away. Where family or other people are financially dependent on you, it is even more important that you have a Will - it may continue to give them financial security long after you are no longer with them.

Intestacy

If you do not have a Will and pass away without one, the laws of intestacy will apply. This means that your Estate will go to your spouse or civil partner if you were married or living together at the time of your death, and to your children if you weren't married or living together. It should be noted that the law of intestacy may vary from the South Australian laws for property located outside of South Australia. If you pass away intestate, the law will determine who inherits your Estate and how much they inherit. This can often lead to disputes between family members, which may end up going through the courts.

What is the Process of Getting a Will?

Creating a will involves several steps:

Our solicitors will schedule an appointment with you to discuss your wishes and how you would like your Estate to be divided.
We provide advice and make observations to confirm your capacity to understand and appreciate the significance of the decisions you are making. You may also wish to explore different options and take advice with respect to assets standing outside of your Estate, including Trusts and Superannuation Fund Entitlements.
We will then draft a Will and send it to you for your approval. This is usually conducted in-person, but can be done via email, telephone, or video call.
Once you have agreed to the draft, we will organise all the necessary documents, including witnessing, stamping, and filing at the Probate Registry.
Once finalised, your Will must be signed by yourself and witnessed by two or more witnesses.
You may choose to safely store your Will with us, while you retain a copy.

Updating a Will

Regularly updating your will is crucial to reflect changes in your circumstances. Major life events such as marriage, divorce, the birth of children, or significant changes in assets necessitate updating your will. Reviewing your will every few years ensures it remains current and relevant.

Do I need to update my Will?

It is important that your Will is kept up to date and that your solicitor is informed if any of the following circumstances change since your last Will:

If you change your address;
if your Executor changes their address;
if you change your name;
if anybody mentioned in your Will changes their name;
if one of your Executors becomes permanently ill, dies, shifts away, loses touch, or becomes unsuitable;
if a Beneficiary dies;
if you have specifically left Property which you subsequently sell, give away, lose, or which changes in nature;
if your family situation changes, such as by the addition of unspecified children, step-children, grandchildren, nephews, nieces, etc.;
if a previously nominated Beneficiary has become guilty of "disentitling behaviour";
if you separate or divorce from your spouse;
if you marry after making this Will, it will be revoked by force of law unless it is expressed to have been made in contemplation of that marriage;
if you enter into a permanent relationship being a de-facto marriage, common law marriage, or have been in a relationship for a period of three years and are deemed to be a genuine domestic partner;
if special arrangements need to be made for any Beneficiary (whether infant or under disability); and/or
if you wish to become an organ donor or donate your body for anatomical research.

Revoking a Will

A will can be revoked at any time by the testator. Common methods of revoking a will include creating a new will that explicitly revokes the previous one or physically destroying the existing will. It is essential to follow proper legal procedures to ensure the revocation is valid.

Estate Planning

What Is Estate Planning?

Estate planning involves arranging the management and disposal of your estate during your life and after death. It aims to minimise uncertainties, maximise the value of the estate, and ensure that your wishes are carried out. Effective estate planning benefits your heirs by reducing the potential for disputes and ensuring a smooth transition of assets.

Components of an Estate Plan

A comprehensive estate plan typically includes:

Wills: Outlines the distribution of assets and appointment of guardians.
Trusts: Manages and protects assets for beneficiaries.
Powers of Attorney: Appoints individuals to make financial and healthcare decisions on your behalf if you become incapacitated.
Advance Healthcare Directives: Specifies your wishes regarding medical treatment.

Trusts

A trust is a legal arrangement where a trustee holds and manages assets for the benefit of beneficiaries. Trusts are versatile tools in estate planning, offering benefits such as asset protection, tax minimisation, and controlled distribution of assets. There are various types of trusts, including discretionary trusts, unit trusts, and testamentary trusts, each serving different purposes.

Powers of Attorney

A power of attorney is a legal document that grants an individual (the attorney) the authority to act on your behalf in financial and legal matters. It is crucial to designate a trusted person as your attorney, as they will have significant control over your affairs if you become incapacitated. There are different types of powers of attorney, including general, enduring, and medical powers of attorney.

Probate and Estate Administration

What Is Probate?

Probate is the legal process of validating a deceased person's will and administering their estate. It involves the court verifying the will's authenticity, appointing the executor, and overseeing the distribution of assets. The probate process ensures that the deceased's debts are paid and the remaining assets are distributed according to the will.

Role of the Executor

The executor is responsible for managing the deceased's estate, including gathering assets, paying debts, and distributing the remaining assets to beneficiaries. Choosing an executor who is trustworthy and capable of handling these responsibilities is essential. The executor's duties also include keeping accurate records, filing necessary tax returns, and ensuring compliance with legal requirements.

Distributing the Estate

The distribution of the estate involves transferring assets to beneficiaries as specified in the will. This process can be straightforward or complex, depending on the size and nature of the estate and any disputes that may arise. Common challenges include locating all assets, dealing with claims against the estate, and managing any disputes among beneficiaries.

Legal and Tax Considerations

Legal Requirements

Australian law imposes specific requirements for wills and estate planning. These include the need for witnesses, the formal execution of documents, and compliance with state and federal laws. Ensuring your will and estate plan comply with these requirements is crucial for their validity and enforceability.

Tax Implications

Estate planning has significant tax implications. Understanding these implications helps minimise tax liabilities for your heirs. Key considerations include capital gains tax, income tax on estate earnings, and potential estate duties. Strategic planning can help manage these taxes effectively, preserving more of your estate for your beneficiaries.

Common Issues in Wills and Estates

Contesting a Will

Wills can be contested on several grounds, including lack of testamentary capacity, undue influence, or failure to provide for dependents. To prevent disputes, it is essential to ensure that your will is clear, fair, and legally sound. Providing a letter of wishes or obtaining medical evidence of capacity can also help protect against challenges.

Family Provision Claims

Family provision claims are made by individuals who believe they have not been adequately provided for in a will. These claims can be made by spouses, children, and other dependents. Addressing potential family provision claims in your estate plan can help minimise the risk of disputes and ensure fair distribution of your assets.

Undue Influence

Undue influence occurs when someone exerts pressure on the testator to change their will in favour of the influencer. This can invalidate the will if proven. To protect against undue influence, ensure that your will is drafted and executed independently, without pressure from potential beneficiaries.

Why Choose Wadlow Solicitors for Wills and Estates?

Expertise and Experience

Wadlow Solicitors is a trusted leader in wills and estates, offering extensive experience in drafting wills, estate planning, and probate administration. Our team of expert solicitors provides clear, practical advice tailored to your unique circumstances, ensuring your wishes are honoured and your loved ones are protected.

Trust and Credibility

Our clients consistently commend our professionalism, expertise, and commitment to achieving the best outcomes. Testimonials highlight our ability to provide strategic insights, meticulous attention to detail, and exceptional client service. We take pride in building lasting relationships and delivering outstanding legal services.

Contact Us

To learn more about how Wadlow Solicitors can assist with your wills and estates needs, contact us today. Our legal experts are here to help you navigate this complex area with confidence and precision. We offer comprehensive legal support tailored to your estate planning objectives, ensuring peace of mind for you and your family.