Wills

Wills & Estate Planning

Approximately 40% of Australians die each year without a Will or any significant estate planning. Getting the right estate planning advice brings peace of mind for both you and your family. Let AMC Lawyers take the uncertainty out of the equation and provide clarity and confidence that your wishes will be carried out should anything happen to you.

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Wills

Having a legal Will ensures your wishes for your estate are known and can be distributed to your beneficiaries as you want.

A Will is a legal document which sets out how you wish your assets to be distributed after your death.

Dying without a Will is considered as “dying” intestate”. This means your estate will be distributed in accordance to a pre-determined order by the law of New South Wales. It is therefore important to have a Will if you wish to have the power of the distribution of your assets

It is important to have an up to date Will. If any of the following circumstances change for you a new Will should be considered:

  • You become married or enter into a new de-facto relationship.
  • You have purchased a new house or inherit assets of your own.
  • You have children.
  • You become separated or divorced from a spouse.
  • You gain or lose substantial assets.
  • If someone you have named as an executor or beneficiary has passed away or is no longer suitable.
  • You have changed your mind.


Testamentary Trusts

A Testamentary Trust is where the assets of the Will are held and managed by a trustee. These are beneficial if you have large complex assets and wish to ensure that certain conditions are met for their distribution. Please contact us for more details on how a Testamentary Trust can help you organise your affairs.

Testamentary Trusts can have the same beneficiaries that you have outlined in your Will.

Assets which can be included:

  • Investments
  • Land or property
  • Cash, and
  • Other valuable assets,
  • including paintings, furniture and jewellery.

Some of the advantages include:

  • Asset protection
  • Income tax benefit
  • Flexibility for the beneficiaries
  • Protection from irresponsible beneficiaries
  • Incapacity
  • Superannuation and Insurance Proceeds

Implementation and ongoing administration costs can be onerous. Other disadvantages include:

  • Capital Gains Tax
  • Pension Eligibility
  • Succession Issues


Power of Attorney

A Power of Attorney (POA) is a legal document allowing you to appoint a person the power to do anything in law that you can do, e.g: pay bills, open and operate bank accounts, buy and sell real estate or shares, and enter into nursing home and hostel contracts.

There are two types of Power of Attorney:

General – power ceases when the person becomes of unsound mind.

Enduring – power remains even if the person making the appointment loses their mental capacity.

In NSW you can make a POA:

  • By hiring a Power of Attorney lawyer
  • Through a Public Trustee
  • Using a do-it-yourself kit

You must have ‘full legal capacity’ to be able to make a POA. This means you must understand:

  • What you are signing
  • The nature and extent of your estate
  • That the POA will have authority to deal with your financial, medical and personal matters

A POA can be anybody you trust to manage your medical, personal and financial matters such as:

  • a family member
  • a close friend
  • a solicitor

Yes, they can be. However, these are two separate documents – A POA only having legal effect during the principal’s lifetime, and the Executor only after the principal has died.


Enduring Guardian

An Enduring Guardian is a legally appointed person able to make decisions about your health and lifestyle in the event you cannot make these decisions for yourself.

Your Enduring Guardian can only start making decisions for you when you are unable to.

An Enduring Guardian can only make decisions in areas that you nominate. These can include:

  • healthcare, medical and dental treatment you receive.
  • where you live and the services you might receive.
  • consult on decisions during your end-of-life stage and advance care plans.

There some aspects which an Enduring Guardian can not make decisions on. These include:

  • your money
  • who you vote for
  • marriage on your behalf
  • anything that is against the law
  • saying ‘yes’ or ‘no’ to special medical treatments.
  • making or changing your advance care directive and making or changing your Will

No.  You must appoint a Power of Attorney to make financial decisions on your behalf. This can be the same person as your Enduring Guardian but requires separate authorisation.


Probate

Probate is an order by the Supreme Court validating a deceased person’s Will to ensure that person’s wishes are carried out by their appointed executor according to the Will.

The person(s) named in the Will as the Executors are responsible for applying for a Grant of Probate.

An application for a Grant of Probate should be filed with the Supreme Court within six (6) months of the date of death.

The administration of the estate should be finalised and distributed to the beneficiaries within twelve (12) months from the date of death.

Ideally distribution of the estate to beneficiaries should take no longer than twelve (12) months from the date of death.

Office hours:

Weekdays: 9am – 5pm
Saturday: On request
Sunday: Closed

Phone:
(02) 4960 9411

Address:
20 Queen St
Waratah West
NSW 2298

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