WILLS & DECEASED ESTATE LAWYERS GOLD COAST
At RobertsLaw, we have the experience and staff who are ready and able to answer your queries with regards to Wills and Deceased Estates.
Our Wills and Estate services include:
- Wills, Mutual Wills and Testamentary Trusts;
- Estate Administration for executors;
- Family Provision Claims;
- Probate Actions;
- Disputed Wills and beneficiary claims;
- Supreme Court Applications;
- Enduring Powers of Attorney; and
- Deceased Estate Litigation.
It is essential that all people over the age of 18 years have an up to date Will and Power of Attorney.
These are two of the most important documents you will ever produce. If you die without a Will or your Will is outdated, it can cost your loved ones many thousands of dollars in legal fees, and time spent in court, trying to administer your estate as you intended.
If you were suddenly unable to make important decisions for yourself, who would make these decisions for you? Decisions like where you will live, how and when to spend your money and the type of medical care you should receive. Do you ever think about what would happen should you find yourself unable to make these decisions? This is when having an Enduring Power of Attorney (EPA) in place becomes invaluable.
Your Will & EPA, and the management of your Estate must be handled with the appropriate care and expertise. You need a team you know you can trust. At RobertsLaw, we have been practicing in the area of Wills and Estates on the Gold Coast for over 30 years. If it has been five or more years since your Will or Enduring Power of Attorney was made, or you have recently separated, married, had a child/ren, bought or sold property or changed your name, you should contact us as a priority on (07) 5530 5700 for a Will and EPA review.
Your Will sets out how you want your possessions to be distributed when you die. Wills allow you to provide for the people you love, leave specific items to specific individuals, make your funeral wishes known, make gifts to charity and appoint someone that you trust to oversee these instructions. Making and keeping an up to date Will, even if you do not own a lot of property or hold assets of significant value, removes any doubt as to your intentions for your estate once you have passed.
Enduring Power of Attorney
If you are ever unable to manage your own affairs, it may be too late to make your wishes known to those around you. The best way to provide yourself and your loved ones with peace of mind is to legally appoint someone now to manage your financial and personal/health matters, should you lose the ability to do so. You can do this by making an Enduring Power of Attorney.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney (EPA) allows you to give your Attorney the power to make financial decisions and also personal and/or health decisions for you, in the event that you are unable to make these decisions for yourself.
An EPA allows you to set out what actions your attorney/s can perform on your behalf. You can even nominate one or more attorneys and stipulate when their power will begin. You can give your Attorney/s the authority to make any decision that you could legally make yourself or limit their power if you choose to do so.
Function of Executor
The role of Executor of a Will is divided into several related functions, such as:
- To establish exactly the assets and liabilities of the estate of the deceased (the Testator);
- To apply for Probate when and if required;
- To pay all debts of the estate, as a first charge on the assets, and;
- To distribute the estate in accordance with the stated wishes of the Testator, within his/her Will.
What some Executors do not appreciate is that they have no discretion to vary the terms of the Will, such as changing how it is to be distributed, without leave of the Supreme Court. In some cases, Executors decide to change a distribution in terms of an agreement reached between all of the beneficiaries and to accept a Deed of Indemnity by all the beneficiaries. Those agreements should be sanctioned by the Supreme Court if they are to be relied upon.
However, the estate is vulnerable to any claims by aggrieved, eligible parties for 6 months, if Probate has been obtained and no prior notices of intention to claim are received and otherwise for 9 months, from the date of death in Queensland. If the Executor distributes before then the Court may hold the Executor personally liable for the amount of money awarded to the claimant.
The Executor is also liable for the debts of the estate if they are not paid, unless the estate is insolvent, as sometimes happens. If the estate is insolvent, great care is required.
PROPERTY OWNERSHIP OPTIONS
Two or more owners may hold as joint tenants, where the death of one means that the survivor/s automatically take the share of the deceased. In this case the deceased’s share of the property is excluded from their Estate, and is not an Estate asset. This can have significant consequences for separated spouses, who may not have intended for a former partner to receive this asset in the event of their death. A joint tenant owner can unilaterally sever the joint tenancy ownership, to avoid this unintended consequence. Separated couples should take legal advice to protect their interests without incurring unnecessary stamp duty.
Tenants in Common
Tenants in Common may hold property in any portions, as long as those portions total 100%. Upon the death of one owner, their portion does become part of his or her estate, therefore passing under the Will of the deceased owner.
From the above, you can see that the test as to how you wish to own a property is whether you wish the other owner or owners to receive your share upon your death. If Tenants in Common is the choice, then the percentage of each buyer is the next decision required, and that depends upon various considerations, such as the contribution of funds by each buyer.
If in doubt, a buyer should seek legal advice, as a bad decision in this process could lead to expensive litigation or stamp duty implications in the future.