Wills and Estate Planning

Over the past 50 years, Snedden Hall & Gallop has acquired specialist knowledge and expertise in all areas of estate planning including the preparation of:

• Wills (including "standard" wills and elaborate wills incorporating one or more testamentary trusts);
• Enduring powers of attorney;
• General powers of attorney.

Estate planning involves many different considerations, including:

• Careful review of all estate assets;
• Careful review of all non-estate assets such as superannuation, life insurance and jointly held property;
• Consideration of the circumstances of your intended beneficiaries, for example: infant beneficiaries; beneficiaries with disabilities or special needs; or otherwise vulnerable beneficiaries such as alcoholics or gamblers;
• Consideration of the impact of any family owned business and/or company and/or family trust.

In appropriate cases, we will work in conjunction with your accountant and/or financial advisor to ensure your estate plan achieves what you want to achieve in the most tax effective manner.

• Wills
  

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  Every adult person should have a Will. We can assist you by drafting and finalising a legally effective Will to ensure that that in due course your estate is left to the people that you care about and for whom you wish to provide.
  
  The wording of Wills is extremely important as a poorly worded Will could mean that your estate might not be distributed exactly how you would like it to be. This can put unnecessary pressure on the family and may lead to unpleasantness, serious dispute or even litigation. If your Will is not valid your estate will be distributed according to a formula determined by government. This may result in family members who have little or no relationship with you receiving a share of your estate.
  
  A Will can be a fairly simple document or it can be a complex document incorporating one or more different types of testamentary trusts (such as discretionary trusts, charitable trusts or special disability trusts) to enable inheritances to pass through a trust structure. We can advise you in relation to the most appropriate type of will to suit you and your circumstances.
  
  
• Testamentary Trusts
  

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  A testamentary trust is a trust that is created by a Will and which comes into effect on the death of the testator. A trust is an ownership structure whereby the assets of the trust are owned by the trustee but held for the benefit of individuals (the beneficiaries). There are different types of testamentary trusts, such as discretionary testamentary trusts, protectionary testamentary trusts and charitable testamentary trusts. We can assist you in working out what type of trust structure is appropriate for your circumstances so that will achieve what you intend for your Will.
  
  A discretionary testamentary trust can provide income tax advantages and asset protection advantages for your beneficiaries.
  

  • Income tax advantages can be obtained because taxable income generated by the trust can be allocated among the beneficiaries in the most tax-effective manner. Beneficiaries of a discretionary testamentary trust who are under the age of 18 years will be taxed at normal adult marginal rates rather than at the higher penalty tax rates which would be payable for trust income distributions under a normal family trust.
  • Asset protection advantages may flow in the event of the bankruptcy or marital breakdown of a beneficiary. This is because the beneficiary does not legally own the trust assets, the trustee does, and so the trust assets may be protected. We can advise you further in relation to the advantages that may be available through the use of testamentary trusts for your individual circumstances.

  
  
• Enduring Powers of Attorney
  

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  General powers of attorney are normally used for a specific purpose and are only valid while you have legal capacity. For example, you may appoint someone else to be able to act on your behalf in relation to the purchase of a property because you know that you will be overseas or otherwise unavailable to complete the purchase yourself. Enduring powers of attorney (EPA) are normally more wide-ranging in their function and they continue to operate when you lose legal capacity (i.e. the power ‘endures’ through the period of incapacity).
  
  EPA is a legal document which gives you the power to specify a person (known as an attorney) who will manage your affairs and make decisions on your behalf when mental or physical incapacity may occur as a result of conditions such as brain damage, dementia, unconsciousness, Alzheimer’s or serious injury.
  
  In particular, an EPA gives you the power to specify what decisions your attorney can make on your behalf. For example, you are able to give your attorney the power to make financial, property, personal and medical decisions for you while you are mentally or otherwise incapacitated. In addition, you are able to limit the types of decisions your attorney can make on your behalf.
  
  Your Will does not allow a person to make decisions for you while you are alive, even if you are mentally incapacitated. Your family members do not automatically have the right to make financial, property, personal or medical decisions for you while you are mentally incapacitated.
  
  
• Probate and administration applications
  

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  We can assist Executors and Administrators of estates to obtain Grants of Probate and Letters of Administration. We will enter into a Costs Agreement with you to do this work for an agreed fixed fee so you will know up-front what the cost will be to the estate.
  
  A Grant of Probate is a document, issued by the Supreme Court, that establishes that a person's Will is in order and that the Executor named in that Will has the power to look after the deceased person's affairs. A Grant of Letters of Administration is issued by the Supreme Court in circumstances where either the deceased died intestate (they did not leave a Will) or where there was a Will but the deceased either did not appoint and Executor in the Will or the deceased did appoint an Executor but the Executor has either died or renounced Probate.
  
  Before a Grant can be obtained, it is necessary for an advertisement to be published (normally in a local newspaper in the area where the deceased lived) giving notice of the intention to apply for the Grant. This is to give potential creditors of the deceased person an opportunity to come forward and make a claim upon the estate.
  
  We can assist you in obtaining full information about the estate assets and liabilities as this information will be required for the application to the Supreme Court.
  
  Some estates will require the Grant of Probate or Grant of Letters of Administration to be resealed in another jurisdiction. We can assist you in applications for reseal of Grants.
  
  
• Estate administration services
  

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  Once a Grant of Probate or Letters of Administration have been obtained, or in estates where a Grant is not required, we can assist Executors and Administrators in administering the estate. Administering an estate includes activities such as closing the deceased’s bank accounts, collecting in and protecting estate assets, selling or transferring shares and/or properties owned by the deceased, attending to any debts or liabilities, finalising the deceased’s taxation affairs and making distributions to the beneficiaries in accordance with the Will or in accordance with the intestacy laws.
  
  If you require Snedden Hall & Gallop’s assistance to administer an estate, you will need to provide us with the following details:
  

  1. the whereabouts of the deceased’s original Will (the original Will will be required if a Grant of Probate needs to be obtained);
  2. a copy of the Will, if the original is not provided;
  3. the original death certificate;
  4. full details of all of the deceased person's assets, including real estate, shares, investments, bank accounts, any interests in companies or trusts;
  5. The name of the deceased person's accountant, together with a recent history of tax returns;
  6. full details of beneficiaries, including addresses;
  7. details of any possible claims upon the estate, including creditors and potential disgruntled beneficiaries.

  
  

• What happens if I don't have a Will?
  

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  If you die without leaving a Will, you are said to die intestate. The law prescribes how your estate will be distributed if you die intestate and the law varies between the States and Territories.
  
  Your spouse would normally receive the bulk of your estate (subject to certain exceptions dependent upon the size of the estate).
  
  If you die without leaving a spouse, then normally your children would inherit the estate, but, again, the rules vary, depending upon the State/Territory.
  
  There are further provisions in the event that you die without leaving a child or spouse but, in an extreme case, your estate may pass to the government. It is for this reason that Snedden Hall & Gallop’s experienced lawyers stress that it is important that you have a legally drafted Will to accurately set out your wishes.
  
  
• What is an executor?
  

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  Under the terms of your Will, you will need to appoint somebody called an executor. The executor is the person who will look after your affairs after you have died and ensure that your wishes are complied with. The executor may be anyone over the age of 18 and must be somebody you trust implicitly. You may appoint more than one executor.
  
  If you only wish to have one person as your executor (initial executor), it is always prudent to appoint another person as your alternate executor. This person will look after your affairs if something happens to the initial executor.
  
  
• Do I need a Will if my property is jointly owned with my partner?
  

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  Many people own all of their property jointly with their partner, e.g., bank accounts and real estate, and, as a general rule, that property would pass to the surviving partner. If you own real estate with your partner as joint tenants, the law dictates that that property can only go to the surviving partner. However, if both of you were to pass away at the same time, it would be essential that you have a properly drafted Will to accurately dispose of the real estate. This is another reason why Snedden Hall & Gallop’s lawyers stress that it is important that you have a Will.
  
  
• What happens with my superannuation?
  

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  Generally speaking, superannuation is not disposed of by your Will but is directed in accordance with the terms of the superannuation trust. The trustees of that trust ultimately determine where your superannuation entitlements will be paid in accordance with the terms of the trust. You will normally be required to nominate beneficiaries at the time you set up the superannuation policy. It is important to update the names of beneficiaries if you separate or divorce from a partner or if any of the nominated beneficiaries die before you.
  
  The superannuation trust will normally determine the appropriate beneficiaries by establishing who is dependent upon you at the time of death. I f no dependants can be established, then it is possible that your superannuation entitlements will form part of your estate and be left in accordance with your Will.
  
  
• What happens to any interest I own in a company?
  

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  If you own a share or shares in a private company, it is important that you consult a solicitor to determine what will happen to that share upon your death. The share will normally form part of your estate, but it is recommended that you check the company records carefully to determine what happens upon the death of a shareholder. If you are looking at establishing a company for any reason, it would be wise to consult a solicitor to determine whether or not it might affect your Will.
  
  
• What happens if I have a life insurance policy?
  

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  Normally, the terms of a life insurance policy require you to nominate a beneficiary or beneficiaries and therefore the proceeds from that policy would not form part of your estate. It is important to consider this when looking at provisions for various people under the terms of your Will.
  
  
• What do I do if I want to leave somebody out of a Will?
  

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  The law requires people making Wills to be fair and just when deciding whom their beneficiaries will be. For example, if you support somebody, such as a child or a partner, and you elect to leave that person out of your Will, that person may have a claim upon your estate if they can establish that they have not been adequately provided for. For this reason, it is important that you consult an experienced estate lawyer for advice on potential claimants and your obligations to those that you support.
  
  
• Where should I keep my Will?
  

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  It is unwise to retain the original of your Will with your own papers unless they are stored in a safe or in a safe custody packet with a bank. Snedden Hall & Gallop provide clients with a service whereby their Wills (and other documents that may need safekeeping) are kept in safe custody in a secure environment.
  
  Snedden Hall & Gallop will provide you with a copy of your Will and recommends that you provide your executor with a copy and advise him or her where the original is being held.
  
  
• What is a guardian, and should I have one?
  

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  A guardian is somebody you appoint to care for your infant children should you and your partner (if any) die. Your Will is the appropriate means of appointing a guardian and you should choose the guardian carefully. Bear in mind that by appointing a person as a guardian, you may be placing a substantial financial hardship on that person, which may need to be compensated by way of a gift to the guardian under the terms of the Will. As a general rule, the guardian cannot use the beneficiaries’ interest in the Will for his or her personal benefit, e.g., buying a larger car or putting an extension on his or her house to accommodate the children.
  
  
• How much will a Will cost me?
  

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  Snedden Hall & Gallop’s fees for Wills vary depending upon the complexity of the drafting. We can provide you with an indication of our fees once we speak with you to determine your requirements for your Will.
  
  
• If I have an interest in a trust, can I pass it by Will?
  

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  Often people are nominated as beneficiaries in family trusts. This entitles them to receive income from the trust for the lifetime of that legal entity. A beneficiary under a trust is not able to leave his or her interest in that trust to somebody else under a Will. The beneficiary’s interest in the trust passes according to the terms of the trust.
  
  
• Why can't I use a home Will kit and do my own Will?
  

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  You will appreciate that the considerations in making a Will are complex. Therefore, it is important that your Will is properly drafted to avoid your wishes being overturned or considerable costs being incurred by your estate to sort out issues that could have been easily resolved had the Will been properly drafted. There are also rules about the signing of Wills that need to be complied with in order to ensure that your Will is legally valid.
  
  
• If I want to make a simple change to my Will, how do I go about it?
  

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  It is important not to alter or add to the original Will in any way that may result in the Will being declared invalid. The proper way to make a minor amendment to a Will is by way of a Codicil. A Codicil is a short additional document evidencing the change to the original Will. There are rules about the signing of Codicils that need to be complied with in order to ensure that your Codicil is legally valid.
  
  
• What happens if I marry after making the Will?
  

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  If you marry after making a Will, the Will will be revoked (or cancelled) by the marriage unless it is expressed in the Will that it is being made in contemplation of your marriage. It is, therefore, important that you make a new Will if you plan to marry.
  
  
• What happens if I divorce after making a Will?
  

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  The law relating to divorce and its impact on Wills is complex and not uniform throughout Australia. You should consult a solicitor if you are contemplating divorce, or have been divorced since making your Will.
  
  
• How often should I review my Will?
  

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  Your Will should be reviewed every 2 - 3 years, whenever a major event occurs in your family, or whenever there are significant changes in your assets or the taxation law. You should consult your solicitor if:
  

  • if you change your name, or anybody named in the Will changes theirs;
  • if an executor dies or becomes unwilling to act as an executor or becomes unsuitable due to age, ill health or for any other reason;|
  • if a beneficiary (someone who has been left something in the Will) dies;
  • if you have specifically left any property which you subsequently sell or give away, or put in trust or into a partnership;
  • if you marry or divorce;
  • if you enter or end a domestic partnership or personal relationship;
  • if you have matrimonial difficulties; or
  • if a child of yours is born or dies, a child is adopted or fostered, an adopted or fostered child dies or a fostering terminates.

  
  
• Do I have to tell my partner if I wish to make a new Will?
  

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  You are free to change your Will or revoke it at any time without informing your partner. However, this does not apply if you and your partner have made mutual Wills (i.e., you have agreed not to change your Wills without the agreement of the other partner). Mutual Wills are occasionally used to protect children of earlier relationships where couples have entered into second or subsequent relationships.
  
  
• Can I leave specific items of property to particular people?
  

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  There is no difficulty with leaving particular items to certain people and it is quite common for pieces of jewellery or items of sentimental value to be left to specific people. These wishes can be accommodated in your Will.
  
  
• If I come to see a lawyer, what do I need to bring with me?
  

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  If you have an appointment to see one of Snedden Hall & Gallop’s experienced lawyers, you should bring:
  

  • details of your full names and address and the full names and addresses of any proposed beneficiaries;
  • details of your assets, including any interests in companies, superannuation entitlements and life insurance policies;
  • the name and address of your proposed executor(s); and the name(s) and address of the proposed guardian(s) of your infant children.

  
  

• Who should be my attorney?
  

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  Any person over the age of eighteen years can be your attorney. However, we recommend that the person you choose to be your attorney is a person whom you trust absolutely.
  
  
• What protection do I have?
  

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  When making decisions on your behalf, your attorney must act as they believe you would have acted in the circumstances. In addition, when making medical decisions on your behalf, your attorney may only consent to lawful medical decisions that are essential for your wellbeing.
  
  
• When can I make an EPA?
  

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  At any time, so long as you have full mental capacity. This means that if you have had a stroke, Alzheimer’s or dementia or have brain damage and you cannot make your own decisions, you cannot make or revoke an EPA.
  
  
• Are there powers that I cannot give to my attorney?
  

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  You cannot give powers to an attorney for special personal matters (i.e. making or revoking your will; making or revoking a general or enduring power of attorney; voting in an election or referendum; consenting to the adoption of your child under 18 years; or consenting to your marriage), and special healthcare matters (i.e. removal of non-regenerative tissue from you for donation; sterilisation if you are, or are reasonably likely to be, fertile; termination of pregnancy; participation in medical research or experimental healthcare; treatment of mental illness; electroconvulsive therapy or psychiatric surgery; or prescribed healthcare matters.
  
  
• What happens if I don’t have an EPA?
  

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  If you do not have an EPA and you become mentally incapacitated, any person may apply to the Supreme Court or the Guardianship and Management of Property Tribunal to be appointed as your guardian. In these circumstances, you do not have control over who may be appointed your guardian. In addition, if you do not have an EPA and do not have a legally appointed guardian, you have no control over decisions that may be made while you are mentally incapacitated. This could mean that you are left in limbo medically, financially or personally.
  
  

• What happens to a person's assets after death?
  

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  A person's assets will normally be distributed in accordance with his or her Will. If a person dies without leaving a Will, the law sets out criteria to determine who will inherit from the deceased person. f no eligible persons fall within the criteria, then it is possible a person's estate may be left to the government.
  
  
• What is Probate?
  

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  A Grant of Probate is a document, issued by the Supreme Court, that establishes that a person's Will is in order and that the executor named in that Will has the power to look after the deceased person's affairs. Before Probate can be obtained, it is necessary to advertise your intention to apply for the Grant of Probate(normally in a local newspaper) to give potential creditors of the deceased person an opportunity to come forward and make a clai
  
  
• What are Letters of Administration?
  

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  When a person dies intestate (without leaving a Will), it is necessary for an administrator to be appointed (the administrator performs a similar function to the executor of a deceased person's Will). Letters of Administration is the document granted by the Supreme Court to provide the administrator with the authority to look after the deceased's affairs. The deceased's assets would be distributed in accordance with the laws that specifically deal with a person dying without leaving a will (i.e. the laws of intestacy).
  
  
• What does it cost to obtain Probate or Letters of Administration?
  

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  In New South Wales, the legal costs of obtaining Probate or Letters of Administration are determined by a scale prescribed by the law. The scale is based upon the value of the estate. For applications for Probate or applications for Letters of Administration in the ACT, we charge legal costs based on a scale which is based upon the value of the estate. We will be happy to provide you with an estimate of the legal costs and disbursement expenses if you contact us. In most cases, we will enter into a Value Pricing Costs agreement with you, whereby we a fixed fee will be agreed for obtaining the grant of Probate or grant of Letters of Administration.
  
  
• What is the "administration" of an estate?
  

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  Once Probate or Letters of Administration have been obtained, your lawyer can begin to administer the estate. This includes closing any bank accounts, selling shares and properties owned by the deceased, and finalising any taxation issues. This work would generally be charged at an hourly rate, as set out in a fees agreement and agreed with you at the time your lawyer took your initial instructions.
  
  If you require Snedden Hall & Gallop’s assistance to administer an estate, you would need to provide your lawyer with the following details:
  
  

  1. the whereabouts of the deceased’s original Will (the original Will will be required, particularly if a Grant of Probate needs to be obtained);
  2. a copy of the Will if the original is not provided;
  3. the original death certificate;
  4. full details of all of the deceased person's assets, including real estate, shares, investments, bank accounts, any interests in companies or trusts;
  5. The name of the deceased person's accountant, together with a recent history of tax returns;
  6. full details of beneficiaries, including addresses;
  7. details of any possible claims upon the estate, including creditors and potential disgruntled beneficiaries.