Wills

A will provides for the distribution of your estate after your death and can appoint the people you wish to administer your estate.

A properly considered will can address matters including:

• who is to receive your assets;

• who is to act as executor;

• gifts of particular assets;

• distribution of the residue of your estate;

• testamentary trusts;

• arrangements for children;

• guardianship wishes for children;

• funeral wishes;

• charitable gifts; and

• other instructions concerning your estate.

The appropriate structure will depend upon the nature and value of your assets, your family circumstances and your broader estate-planning objectives.

Reviewing an Existing Will

A will should not necessarily be regarded as a document that is prepared once and then forgotten.

It may need to be reviewed following events such as:

• marriage or separation;

• divorce;

• birth or adoption of children;

• death of a beneficiary or executor;

• changes in family relationships;

• acquisition or sale of significant assets;

• changes in business interests;

• changes in superannuation arrangements;

• establishment or alteration of trusts;

• significant changes in financial circumstances; or

• changes in your intended beneficiaries.

Regular review can help ensure that your testamentary arrangements continue to reflect your intentions.

Enduring Powers of Attorney

An Enduring Power of Attorney (EPOA) allows you to appoint another person to make certain personal and/or financial decisions on your behalf.

The importance of an EPOA is that it can continue to operate if you subsequently lose capacity.

Depending upon the terms of the document and the relevant Queensland legislation, an attorney may be authorised to make decisions concerning matters such as:

• financial affairs;

• property;

• banking;

• investments;

• business interests; and

• personal matters.

Choosing an attorney is an important decision.

The person appointed should be someone you trust and who is capable of properly exercising the responsibilities involved.

Why an EPOA matters

Without appropriate arrangements, the loss of capacity can create significant practical and legal difficulties for family members and others attempting to assist.

An EPOA can provide a framework for decision-making before that situation arises.

It should, however, be prepared having regard to the person’s particular circumstances and the powers that are intended to be granted.

Advance Health Directives

An Advance Health Directive (AHD) is a Queensland legal document that allows a person to give directions about their future health care and treatment.

It can be particularly important where a person wishes to record their preferences in circumstances where they may later be unable to make or communicate particular health-care decisions.

An AHD is different from an EPOA.

Broadly:

EPOA
Concerns decision-making powers given to an appointed attorney.

Advance Health Directive
Allows a person to give directions about future health care and treatment.

The documents can form part of a broader incapacity-planning strategy.

Reviewing Your Health-Care Wishes

Health-care preferences can change over time.

An AHD should therefore be considered in the context of your current circumstances and wishes, and reviewed when appropriate.

Medical advice may also be important when considering particular treatment decisions.

Lee Lawyers can advise on the legal aspects of the document and its relationship with other estate-planning arrangements.

Estate Planning

Estate planning involves considering how your assets and responsibilities should be managed during your lifetime and after your death.

Depending upon your circumstances, this may involve consideration of:

• your will;

• EPOA;

• Advance Health Directive;

• ownership of assets;

• jointly owned property;

• superannuation;

• life insurance;

• family trusts;

• companies;

• business interests;

• testamentary trusts;

• beneficiaries;

• tax considerations; and

• succession arrangements.

A will only deals with assets that form part of your estate.

Some assets may pass outside the estate, depending upon their ownership and the relevant arrangements.

This is why an effective estate plan should consider the overall structure of your affairs, rather than simply the wording of the will.

Business and Family Succession

Estate planning can become more complex where you own:

• a business;

• shares in a company;

• partnership interests;

• family trust interests;

• commercial property;

• investment property; or

• other significant assets.

In these circumstances, succession planning may need to address not only who receives an economic interest but also how the relevant business or assets are to be managed.

There may also be issues concerning:

• shareholders;

• directors;

• business partners;

• guarantees;

• insurance;

• existing agreements;

• control of companies and trusts; and

• the transition of management following death or incapacity.

Lee Lawyers can consider these issues as part of a broader legal succession plan.

Estate Management & Administration

When a person dies, their estate generally needs to be identified, collected, administered and distributed in accordance with the will and applicable law.

Lee Lawyers can assist executors, administrators and beneficiaries with estate administration, including:

• identifying estate assets and liabilities;

• obtaining probate;

• applying for Letters of Administration;

• dealing with banks and financial institutions;

• dealing with property;

• communicating with beneficiaries;

• addressing estate liabilities;

• transferring or selling assets;

• distributing estate assets; and

• finalising the estate.

The appropriate process depends upon whether the deceased left a valid will, the nature of the estate and the circumstances of the beneficiaries.

Probate

Where a person dies leaving a will, the executor may need to obtain a Grant of Probate before dealing with certain estate assets.

Lee Lawyers can assist executors with:

• preparing the application;

• identifying the required documentation;

• obtaining the appropriate grant;

• dealing with estate assets; and

• completing the administration of the estate.

Not every estate requires the same process, and the appropriate approach should be considered according to the circumstances.

Letters of Administration

Where a person dies without a valid will, or in circumstances where an administrator rather than an executor is required, an application for Letters of Administration may be necessary.

The process can involve consideration of:

• the deceased’s next of kin;

• the estate assets and liabilities;

• competing applications;

• beneficiaries;

• potential claims against the estate; and

• the appropriate person to administer the estate.

Lee Lawyers can advise and assist with the relevant application and subsequent estate administration.

Executors and Administrators

Being appointed executor or administrator involves legal responsibilities.

These may include:

• identifying estate assets;

• protecting estate property;

• paying legitimate debts;

• dealing with tax and other liabilities;

• keeping appropriate records;

• communicating with beneficiaries;

• complying with the terms of the will; and

• distributing the estate appropriately.

Executors and administrators may also need to deal with disputes or competing claims.

Obtaining legal advice early can help an executor or administrator understand their responsibilities and reduce the risk of avoidable problems.

Estate Disputes

Sometimes an estate cannot be administered without a dispute arising.

Lee Lawyers also acts in estate disputes, including:

• disputed wills;

• family provision applications;

• beneficiary disputes;

• executor disputes;

• estate administration disputes;

• testamentary capacity issues;

• questions concerning the validity or interpretation of wills; and

• disputes concerning estate assets.

Where an estate dispute arises, negotiation and mediation may be appropriate before or during litigation.

Estate Planning and Property

Property is frequently a significant component of an estate.

Estate planning may therefore need to consider:

• the ownership of residential property;

• investment property;

• commercial property;

• jointly owned property;

• mortgages;

• property held through companies or trusts; and

• property intended to pass to particular beneficiaries.

The way property is owned can affect how it passes on death.

For this reason, property ownership should be considered as part of the overall estate-planning process.

Estate Planning and Superannuation

Superannuation does not necessarily form part of the estate in the same way as ordinary personally owned assets.

The manner in which a superannuation interest and any death benefit passes can depend upon the relevant fund arrangements, nominations and applicable law.

Where superannuation is significant, it should therefore be considered as part of the broader estate-planning review.

Specialist financial or tax advice may also be appropriate.

Testamentary Trusts

For some estates, a testamentary trust may provide a useful structure for managing assets after death.

Potential reasons for considering such a structure may include:

• providing ongoing management of assets;

• protecting assets for particular beneficiaries;

• providing for children or vulnerable beneficiaries;

• managing significant family wealth; or

• accommodating more complex family or business circumstances.

Whether a testamentary trust is appropriate depends upon the particular circumstances and should be considered as part of the overall estate plan.

Keeping Your Documents Together

An effective estate plan is more than a collection of documents.

It is useful to ensure that appropriate people know:

• where the original will is kept;

• who the executor is;

• who has been appointed attorney;

• where important financial information can be found;

• what insurance arrangements exist;

• what business interests are held; and

• who should be contacted if you lose capacity or die.

Care should be taken, however, to maintain the security and confidentiality of important documents and information.

Reviewing Your Estate Plan

Estate planning should be reviewed when your circumstances change.

Important events can include:

• marriage;

• separation or divorce;

• the birth of children or grandchildren;

• death of a beneficiary;

• death or incapacity of an executor or attorney;

• significant changes in assets;

• acquisition or sale of a business;

• changes in property ownership;

• changes in superannuation;

• establishment of a trust;

• significant changes in family relationships; or

• changes in your wishes.

A review can help ensure that the various components of your estate plan continue to work together.