Estate Planning Advice
While everyone always hopes to live as long and full a life as they can, it’s never possible to predict when you might pass away, or if an accident or illness could prevent you from making the right decisions. So it is important to prepare a legal Will, so that your Estate (your belongings, assets and finances) go to the people you want to have them, if you are no longer there to make sure that happens.
A Will is one of the most vital kinds of legal documents. The law takes them very seriously and works to uphold every statement that they make. Every Will in NSW is assessed and safeguarded by the Supreme Court. So, experienced advice is important in making Wills that will be clear and legally binding. That is what we can offer you at Mahony Family Lawyers, but most importantly we also have the empathy to understand your family realities, and to help you arrange a Will that reflects your wishes fairly.
For advice or assistance with any aspect of making a Will, call us today on (02) 9018 9408 to make an appointment in the Sydney CBD, Parramatta or Penrith or send us an email. We are always open to your enquiries.
At Mahony Family Lawyers we can also assist in cases when a Will is challenged. We can defend and uphold Wills against challenges, or assist clients who want to make a challenge. Click here to read more about “Contested Estates.”
Estate Planning Advice
Writing a legally valid Will
In Australia, the process for writing a Will is very clear and straightforward, and generally you can explain your wishes for your Estate in your own way. However, for a Will to be valid and legally binding, it needs to meet a number of basic conditions. Often, professional legal advice will be helpful, as preparing a Will can be a very emotional act. It is always distressing to imagine the pain of those you might leave behind, but with the right wording and careful distribution of your property, you can make a Will with peace of mind.
Firstly, your Will needs to be in writing (by hand or typed out). Secondly, every page must be signed by you and at least two witnesses, with all of you present at the time. If you can’t sign for some reason, then you can ask someone else to sign for you, but once again you and your witnesses must all be present when that happens. Thirdly, once you and your witnesses have signed every page of your Will, the witnesses must declare at the end that the Will is yours.
A Will should also name a person you trust to carry out your wishes: an Executor. Your Executor could be a family member, or one of your legal representatives – Mahony Family Lawyers have been trusted as Executors for many Will over the years. Your Will should also deal with all important parts of your property, so that nothing is left open to doubt or challenge.
A Will that is written, witnessed and signed in this way is regarded as final by the law. If you change your Will – scroll down to read how – you should destroy any earlier Wills, to avoid confusion or unnecessary challenges after you are gone. It is a good idea to keep photocopies of your Will, for security, but the only legal version is the signed original, which you should keep in a safe place. This could be in a private file at your home, at your bank, or with your legal representatives. At Mahony Family Lawyers we can advise you on the safest way to store your Will.
“Living Wills” – planning your Estate in case of illness or accident
If an illness suddenly makes you or one of your family unable to plan how to arrange your property, the consequences can be unexpected and devastating. So as well as making a Will to arrange the division of an Estate after death, it is also a good idea to make a “Living Will” in case an illness or accident makes clear decisions impossible.
A “Living Will” can include different sets of instructions to cover different situations.
Enduring Power of Attorney
Enduring Power of Attorney grants another person the power to make important decisions for you, or for a family member, if an accident or illness means you or the family member can’t make the decision themselves. The person you give the Power of Attorney should be someone you trust.
Advanced Care Directives
Advanced Care Directives are legal instructions for your medical care, or the medical care of a family member, which will be followed if you or they can’t ask for that kind of care. Advanced Care Directives can include instructions on end-of-life care – how and when to decide if you or a family member should be allowed to pass away.
Changing a Will or Estate Plan
Many people feel the need to change their Will at various points in life. This may because your property changes or your feelings change about who should receive it after you are gone. If you experience a major change like this, you should alter your Will to reflect it as soon as possible, to make sure that your wishes are respected.
Legally, you can’t change a Will by making corrections to it – the courts do not accept changes of that kind. However, the legal ways of changing your Will are simple.
A codicil is a document that adds to or extends a Will, like an appendix or afterword. Codicils are useful if they relate to new property or assets, which do not change the basic contents of the Will or your earlier wishes. A Codicil needs to be signed and witnessed like the rest of the Will. However, given the complexities of property and family life, often a Codicil is not the best way to alter a Will. We are happy to understand your situation and advise whether or not a Codicil would be useful in your case.
Writing a new Will
In most cases, it is simplest to re-write your Will to reflect the new circumstances and your new wishes, and to have the new Will signed by two witnesses as before (and they can be the same witnesses). If you do write a new Will, you should destroy the old one. The court needs to see clearly that a Will represents the last and latest wishes of the person who wrote it.
Probate is a declaration made by the Supreme Court of NSW that a Will is true and correct, and that the Executor it appoints is fit to carry out that role.
It is an important responsibility to be named as Executor in a Will, and often you may need legal advice and assistance to carry out the role, especially if people come forward to claim debts from the Will, or if there is a challenge to the Will.
First, you need to apply to the Supreme Court of NSW for probate, which you can do via the court’s website. Fourteen days have to pass before you can go to the court, and in that time anyone who may have a claim on the Estate (people who are owed debts, for example) can put forward their claims. After fourteen days you will be called to the court. You must take with you the original Will of the person who has passed away (the court can’t accept copies), the person’s Death Certificate and any medical evidence of their death, an inventory or list of all the property described in the Will, and an Affidavit, or legal statement, that as Executor you will carry out your role in accordance with every statement in the Will.
At Mahony Family Lawyers we have long experience in assisting Executors carry out the wishes expressed in Wills. We can help make the legal arrangements to pay debts or contact people named in a Will, if they do not respond or are difficult to find.
Legal advice from Mahony Family Lawyers on Wills and Estate Planning
Planning your Estate and writing your Will are some of the most important things anyone can do for their family. At Mahony Family Lawyers we know that making arrangements like this can be emotional and stressful, especially if your circumstances mean you have to leave someone out of your Will, or change it so that different people receive different parts of your property. No matter what your situation, we have the experience and the understanding to help you make a Will that is legal and that reflects your true wishes.
For advice or assistance with any aspect of Wills or Estate Planning, call us today on (02) 9018 9408 or send us an email to make an appointment in any of our three offices, located in Parramatta, Penrith or the Sydney CBD.