June 13, 2016

Wills, Powers of Attorney & Estates

Lake Street Lawyers offer a wide range of services related to Estate planning including:

  • Wills & Powers of Attorney – General & Medical
  • Testamentary Trusts
  • Probate
  • Letters of administration
  • Administration of estates
  • Appointment of Guardians
  • Estate litigation & Part IV claims
  • Surviving Proprietor/Legal Rep. applications



What is a Will?

A Will is a legal document that sets out who you want to receive your assets after you pass away.

Why do I need a Will?

Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you pass away. The handling of your estate after your death will potentially be more time consuming and costly without a Will.

What happens if I die without a Will?

If you die without a Will your estate will be distributed according to a statutory pre-determined formula with family members receiving an allocated percentage despite what you would have wanted. In some cases some or even all of your estate may pass to the government.

What happens if I’m living in a defacto or same-sex relationship and I die without a Will?

Your partner may be entitled to share in your estate on your death however they would need to prove the relationship existed. Naming your partner as a beneficiary in your Will removes any doubt and eliminates the possible added expense and emotional toll related to having to prove the relationship.

What about jointly held property?

Your will does not cover your property if it is held as “joint proprietors (as opposed to “tenants in common”) as it will automatically pass to the surviving joint owner. So for example if you and your spouse own your house in joint names then your spouse will become the sole owner irrespective of the contents of your Will.

What about Superannuation?

Most superannuation funds allow you to execute a “Binding Nomination” nominating a beneficiary who will be paid directly by the super fund without the need for it to form part of your estate (subject to certain limitations). You will need to contact your superannuation fund directly to organise this.

Can I prepare my own Will?

There is no requirement that a Solicitor draft your Will. However, drafting your Will yourself is not advisable.
There have been many cases where homemade Wills were deemed invalid or unclear and many of these cases ended up in the Court system for years, causing distress and financial hardship to the family of the deceased.
A Solicitor will not only follow your instructions, they will also offer advice on how to structure the document so as to ensure your Will is both legally valid and satisfies your requirements.

When should my Will be updated?

It is advisable to regularly review your will as circumstances change in your life so that it reflects your current wishes. Situations where you may want to, or have to update your will include:
Separation or divorce;
Starting or ending a de facto relationship;
Birth of children or grandchildren;
Your children have married or divorced;
The executor named in the will is seriously ill or has died;
Your spouse or partner or other beneficiary has died.

Can someone challenge my Will?

You are legally entitled to leave your assets to anyone you wish, however friends or relatives who believe they should have been but have not been sufficiently provided for are entitled to contest your Will.
People who can contest your will include your current or former spouse, your children, de-facto partner or ex-partner or any other dependants. That person will need to convince the Court that you failed to make adequate provisions for their maintenance, education or advancement in life, where you should have reasonably done so.
Your solicitor will be able to advise you as to how best to structure your Will to minimise the chances of the Will being contested.

Where should I keep my Will?

It is vitally important to keep your Will in a safe place. Additionally you should advise someone close to you as to where your Will is kept so it can be located when required. Some solicitors can hold your Will in safe storage for you at no charge.


Powers of Attorney

What is a Power of Attorney?

A Power of Attorney is a legal document that allows another person or people the power to make decisions on your behalf. The decisions they make have the same effect as if you have made them yourself.

What types of decisions?

Financial Powers of Attorney allow the attorney to make financial decisions for you, for instance if you go overseas they can pay bills for you, manage your finances and investments or even sign financial documents such as Contracts of Sale.
Medical Powers of Attorney specifically cover medical issues such as consent to treatment or whether or not to continue life support.
Enduring Guardianship applies if you become mentally incapacitated and allows the Attorney to make day to day decisions about matters such as where you live, management of your health care and who can visit you.

What is the difference between General and Enduring Powers of Attorney?

General Powers of Attorney are for when you are overseas or in hospital and can’t attend to general matters and they can even have an expiration date. The general Power of Attorney no longer has effect if you become mentally incapacitated.
Enduring Powers of Attorney continue to have effect if you become mentally incapacitated due to injury or illness.

Can I limit what the Attorney can do?

Powers of Attorney can be tailored to suit specific circumstances such as the Attorney only has the authority to sign documents related to a purchase of a property, to attend investment board meetings or to pay your bills. Enduring Guardianships can specify what decisions can and can’t be made regarding management of your care. Some financial institutions accept only enduring financial Powers of Attorney documents.

What happens if I lose capacity and don’t have a guardian?

If you become incapacitated and you don’t have an enduring power of attorney or a guardianship, in some circumstances, the Victorian Civil Administrative Tribunal (VCAT) can appoint a qualified person to take over your affairs. However, the appointed person’s decisions may not be in accordance with your preferred wishes and the Guardian may charge a percentage of your estate and other fees for performing this function.


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