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FAQ

 

Let us answer your questions

Here you will find the answers to the most commonly asked questions for the following areas:

About Wills

Preparing a Will

Updating your Will

Legal and DIY Wills

Intestate – what happens when there isn’t a Will

Deceased Estates

Powers of Attorney

Advanced Health Directives

Dealing with superannuation – Binding Death Benefit nominations

Contesting Wills.

If you can’t find an answer to your question here, please Contact Us, we’re more than happy to help.

Please refer to this important information when considering the contents of these question and answers.

 

About Wills

Why is a Will important?

Do I need a Will?

What are the benefits of having a Will?

What happens if I don’t have a Will?

When should I make a Will?

I’m scared to make a Will, isn’t it tempting fate?

Aren’t I too young to need a Will?

I don’t have much of value so I don’t need a Will do I?

 

Preparing a Will

What do I need to prepare a Will?

Do I need to check with my Executors or Guardians first?

How do I specify who gets what in my Will?

How do I make sure my assets go to the right people?

I’m married or have a long-term partner, we only need one Will don’t we?

Where should I keep my Will?

 

Updating your Will

Do I need to update my Will?

When should I change my Will?

Why should I update my Will?

How hard is it to change my Will?

Can I update my own Will?

 

Legal Wills and DIY Wills

What is a Legal Will?

Should I write my own Will?

What can go wrong with a DIY Will?

Is a DIY Will a good option for simple Wills?

Where do I get help with my Will?

What happens if I already have a DIY Will?

 

Intestate – What Happens When There Isn’t A Will

What does intestate mean?

What happens if someone dies without a Will?

Who gets what if there isn’t a Will?

What do I do if a loved one dies without a Will?

 

Deceased Estates

What happens to deceased estates?

What is involved in the Estate Administration process?

Who administers a deceased estate?

What happens if the appointed Executor can’t administer the estate?

What happens if there isn’t a Will?

What is a Court Grant of Probate?

When is Probate required?

What happens after the Grant (of Probate) has been made?

What does the Executor do?

Can I choose a different solicitor to administer an estate?

 

Powers of Attorney

What is a Power of Attorney?

What’s the difference between a General Power of Attorney and Enduring Power of Attorney?

Do I need a General Power of Attorney and an Enduring Power of Attorney?

Who needs a Power of Attorney?

How is having a Power of Attorney different to having a Will?

Who can be an ‘Attorney’?

How do I make a Power of Attorney?

How do I choose the right ‘Attorney’?

What should I consider when appointing a Power of Attorney?

What are the Attorney’s’  responsibilities?

What powers can be given to an ‘Attorney’?

What happens if an ‘Attorney’ acts improperly?

Can I change my mind?

 

Advanced Health Directives

What is an Advanced Health Directive?

Do I need an Enduring Power of Attorney and an Advanced Health Directive?

Who needs an Advanced Health Directive?

Who can make an Advanced Health Directive?

 

Dealing with superannuation – binding death benefit nominations

Does superannuation need to be included in my Will?

What is a Binding Death Benefit nomination?

Why do I need to give instructions about my superannuation?

What if I already nominated a beneficiary for my superannuation fund?

Who can I nominate as a beneficiary?

What makes a Binding Death Benefit nomination valid?

How long does a Binding Death Benefit nomination remain valid?

Can I change my Binding Death Benefit nomination?

What is meant by ‘dependants’?

What is meant by ‘spouse’?

What is an interdependency relationship?

Who is my legal personal representative?

 

Contesting a Will

What can I do if I was left out of a Will?

How do I challenge or contest a Will?

 

ABOUT WILLS

 

Why is a Will important?

When it comes to Wills one of the biggest misconceptions is that “I don’t need one”. This is simply untrue for the vast majority of people.

Many people have intentions of making a Will, but simply never get around to it. Yet none of us know what’s just around the corner.

It’s essential to have a high quality legally binding Will to avoid bitter arguments, disputes, confusion and heartache at a time when loved ones are trying to cope with the loss of someone close to them.

Having a Will prepared is very simple and will secure your wishes for the future.

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Do I need a Will?

The short answer is that if you have children, assets or keepsakes you wish to be cared for or distributed after your death, you need a Will. These may include significant financial assets such as property, shares or savings but it can also include superannuation and associated life insurance and keepsakes that may only have sentimental value.

Those most in need of an up-to-date Will include those who are:

  • A business owner
  • Travelling overseas, or interstate regularly or for a long period of time
  • Undergoing a serious medical operation
  • Likely to be incapacitated, out of action or out of contact for a significant period of time
  • Frail or have chronic illness.

However you should also prioritise having a Will if you:

  • Have children or are planning a family
  • Are getting married or divorced
  • Have a long-term partner or that long-term relationship has ended
  • Live with or about to move in with a partner
  • Are buying or have property, a business or other assets
  • Have a complex family situation.
  • Have superannuation, particularly if it includes a life insurance component, as this may require a specific Binding Death Benefit Nomination to ensure your nominated beneficiary receives the benefits you intended.
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What are the benefits of having a Will?

The benefits of having a high quality and up-to-date Will include:

  • Securing your wishes
    A Will is essential if you want to ensure that your wishes are carried out after your death.
  • Peace of mind and the avoidance of disputes
    You give yourself peace of mind knowing that you have put your affairs in order. Making a Will can help spare your family and friends needless heartache and problems.
  • Specific Bequests
    You can specify exactly where you want your money and possessions to go. You can make special provisions for your immediate family, other relatives, friends and charities. You may want to give away items of sentimental value as well as those of monetary value. Only by making a Will with specific provisions can you be certain that a special item goes to the person whom you want to receive it.
  • Legal Guardian for children
    If you have children under 18 it is important to make provision for them in the event of your death. This is particularly important in the case of one-parent families or unmarried parents living together.
  • Tax
    There are financial advantages of having a Will. In certain circumstances, you can use a Will to minimise the amount of tax payable and your family will be spared unexpected legal bills.
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What happens if I don’t have a Will?

If you die without leaving a Will you are said to die intestate and the Law decides how your money and possessions should be divided. Although your next of kin will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the wrong hands.

 

Without a Will, in certain circumstances your estate may simply pass to the Government and you will have had no say in where your money or possessions will go. Refer to the section on INTESTATE – WHAT HAPPENS WHEN THERE ISN’T A WILL for more information.

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When should I make a Will?

If you don’t already have a Will the best time to do it is NOW. It also makes sense to review your Will every few years, as your circumstances may have changed and an updated Will makes sure your wishes are absolutely clear.

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I’m scared to make a Will, isn’t it tempting fate?

Making a Will is not tempting fate. If you don’t make a Will you could leave many problems for your family to sort out, and cause unnecessary heartache and disputes. 

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Surely I’m too young to need a Will?

If you have children, assets or keepsakes you wish to be cared for or distributed after your death, you need a Will. These may include significant financial assets such as property, shares or savings but it can also include superannuation and associated life insurance and keepsakes that may only have sentimental value.
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I don’t really have much of value, so I don’t need a Will do I?

If you have children, assets or keepsakes you wish to be cared for or distributed after your death, you need a Will. These may include significant financial assets such as property, shares or savings but it can also include superannuation and associated life insurance and keepsakes that may only have sentimental value.

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PREPARING A WILL

 

What do I need to prepare a Will?

When preparing a Will you should consider and gather information on the following:

  1. Property – record your major assets and their approximate current value. Obvious examples include your home, any second or holiday home, your household contents, furniture, clothes, antiques, jewellery, your car, other items of value.
  1. Financial Assets – get details of your bank and building society accounts and balances, stocks, shares and investments, pension and superannuation benefits, life insurance, premium bonds, unit trusts, business assets, any other financial interests.
  1. Any money you owe – this includes any mortgage outstanding, other loans, overdrafts, hire purchase agreements, credit card debts, other money owed. Make a note though if all of some of these debts will be paid off on your death via an insurance policy or similar.
  1. Money you are owed – record the name and address of any debtors together with the date of loan and amount outstanding.
  1. Your Executors – note their full names and addresses. We normally recommend a family member or close friend together with a professional who can be objective and give guidance.
  1. Guardians – if your children are under 18 years of age. Note their full names and addresses.
  1. Specific Bequests – are their any specific provisions you would like made for your immediate family, other relatives, friends and charities? This may include items that have sentimental value only.
  1. Individuals and/or Charities – make sure you know their full names and addresses of any person or body whom you want to benefit in your Will and what kind of gift you wish to make to each.
  1. Powers of Attorney – give some thought to whether you need a Power of Attorney or Enduring Power of Attorney (see a separate fact sheet on these) and who you may like to appoint.
  1. A list of further questions – if there is any specific questions or concerns you have, take a note of them.
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Do I need to check first with my Executors or Guardians?

Before you make a Will, ask the people you wish to appoint as Executors and Guardians and if they will act on your behalf.
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How do I specify who gets what in my Will?

In your will you may have items, possessions or money you wish to go to certain people or organisations – these can be referred to as gifts. The three main ways of making gifts are as follows:

  1. A gift of a specific item to an individual or an organisation.
  1. A gift of a specific amount of money. Inflation can reduce the real value of your gift, you may wish to review this from time to time.
  1. All the rest of your property, not already given away under the above. This is known as your “residuary estate”.
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How do I make sure my assets go to the right people?

If you’re worried about who will get your stuff after you die or you don’t want certain people to benefit from your estate or assets, you need a high quality, up-to-date Will.

If you don’t already have a Will the best time to do it is NOW. Having a Will prepared is very simple and will secure your wishes for the future.

It also makes sense to review your Will every few years, as your circumstances may have changed and an updated Will makes sure your wishes are absolutely clear.

Gill and Lane Solicitors can help you make sure your future wishes are followed.

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I’m married or have a long-term partner, we only need one Will don’t we?

Husbands and wives should make separate Wills, as should de-facto partners.

One Will is not enough, but they can be prepared at the same time.

Gill and Lane offer packages for two Wills to reduce the overall costs.

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Where should I keep my Will?

Keep your Will in a safe place and make sure someone knows where it is. Some people like to store them in a safe or a fire-proof box but this is up to you.

Gill & Lane will store your Will free of charge and give you a certified copy.

You should also provide a copy of your Will to your Executor.

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UPDATING YOUR WILL

 

Do I need to update my Will?

It’s essential to have a high quality, legally binding Will to avoid arguments, confusion and heartache at a time when loved ones are grieving.

Having a Will is a great start but it’s equally important for it to be up-to-date.

 

Life and circumstances change over the years and so should your Will. There may be marriages, divorces, children, grandchildren and changes to your assets that need to be taken into account.

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When should I change my Will?

It’s a good idea to review your Will every five years or so. You can use your Driver’s Licence renewal date as a reminder to also review your will.

It may not need changing every time, but it’s a good idea to check just in case.

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Why should I update my Will?

There are many reasons why you may need to change your Will.

  • If you marry – marriage revokes a Will unless the Will has been specifically made in anticipation of a particular marriage. You will also probably want to make a provision for your new spouse.
  • If you divorce – divorce automatically cancels any bequest made to a former spouse, so if you do want an ex-spouse to benefit in anyway you must state this.
  • If you separate – if you are separated from a spouse but not divorced he or she still has a legal claim on your estate, no matter how long you have been apart.
  • If you have a new live-in partner – if you are living with a new partner they may also have an entitlement. You should consider making specific provision for them.
  • The birth of a child or grandchild – you may want to change your Will to include a gift for them, even if it’s just has sentimental value. You may need to nominate wishes for how a dependent will be cared for.
  • Gift reallocation – you may want to change who you have nominated to receive a gift. If you don’t reallocate the gift, it will become part of your residuary estate, that is, what is left of the estate once all the specific gifts in the Will have been made. It is then up to the Executor to determine what happens to the gift.
  • Changing Your Executor – If one of your Executors dies or you want to change your Executor for any reason, you will need to appoint someone else.
  • Changes in the value of your estate – you may suddenly find that there is a significant change in your financial circumstances – you might, for example, have received an inheritance yourself. Equally, of course, you may perhaps have lost money on the Stock Market or through the drop in property values. You need to think about changing your Will to take account of this.
  • Cash legacies – you should also bear in mind the effects on cash legacies. What you thought was a substantial gift may turn out to be worthless by the time of your death, if you have not reviewed your Will in the meantime. It could make sense to state a percentage rather than a fixed sum or make the legacy index linked. This means the value of the gift will be maintained.
  • Personal information – you may need to update personal information, contact details or even include instructions about digital assets, such as online and social media account login details.
  • Change of mind – you are perfectly entitled to change your mind. You may decide that you would rather one particular friend or family member receive a gift than another. You may wish to change the Guardians you have appointed for your children. There might be a charity not previously mentioned which you would like to benefit.
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How hard is it to change my Will?

The simplest way to change your Will is by making a Codicil but this is only suitable for relatively minor changes or additions.

If, for example, you have bought a new set of golf clubs that you would like to leave to your grandson, you could use a codicil for this. A codicil is an instruction that is added to your existing Will and you can change it in any way you wish. It is a legal document and must be signed and witnessed in the same way as your Will.

If you want to make more significant changes, we suggest you make a new Will.

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Can I update my own Will?

Not every Will is equal. It’s very easy to make a mistake with a homemade Will, as there are certain strict legal formalities that must be complied with. A Will is an important document and it is worth taking a little trouble to get it right.

You should enlist the help of a professionally qualified expert such as Gill and Lane Solicitors who can provide advice for your particular circumstances.

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LEGAL AND DIY WILLS

 

What is a Legal Will?

Some studies have shown that that nearly one in two Australians don’t have a valid or legal Will. An out-of-date or non-existent Will can result in unnecessary financial hardship and emotional stress for surviving spouses, family and friends.

Many people often ask: ‘What makes a Will legal?’ or ‘What’s a valid Will’.

It’s important to realise that a Will can be valid or legal but still not meet your needs and wishes.

The laws governing the legal requirements for preparing a valid and legal Will vary from state to state, and country to country in general terms within Australia you must:

  • Be at least 18 years old and understand what you are doing (have testamentary capacity)
  • Ensure that your specific wishes are in writing
  • Have the document signed in the presence of two witnesses.

You can see from these requirements that a Will can be valid but still be insufficient – it will depend on the Will drafting, contents and level of expertise of the person who created it.

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Should I write my own Will?

Many people wonder if they can use a DIY (do it yourself) Will Kit but this can be risky.

A Will is one of the most important legal documents that you will make in your lifetime and it is worth taking a little trouble to get it right.

Having a valid, legal and high quality Will prepared is very simple and will secure your wishes for the future.

While many people try to save a few hundred dollars by using a DIY Will Kit, it may cost them or their loved ones more in the long run.

It’s very easy to make a mistake with a homemade Will, as there are certain strict legal formalities that must be complied with.

It’s not uncommon for a DIY Will to cost an Estate tens of thousands of dollars because the Will wasn’t drafted or executed properly.

While some of the mistakes can be fixed – many cannot.

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What can go wrong with a DIY Will?

Not every Will is equal. Some of the most common problems or pitfalls for do-it-yourself Wills include:

  • The Will is not properly executed or witnessed
  • Inappropriate Executors appointed
  • Estate not disposed of properly due to the drafting of the Will
  • Assets not properly accounted for in the Will
  • Residuary Estate isn’t effectively disposed of resulting in Legislation determining the distribution of the remaining Estate
  • Uncertain Terms of Will resulting in expensive Court action to determine the meaning of the Will
  • Gifts not properly described or inappropriate conditions applied to them
  • Superannuation and Family Trusts (which are not part of the Estate) not dealt with effectively
  • Failure to consider Tax – this requires detailed knowledge of Tax and Succession laws
  • Claims against the Estate not considered and protected against.
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Is a DIY Will a good option for simple Wills?

We often hear people say: “But my Will is really simple”.

A DIY Will kit caters for only the simplest of Wills (and even then can be problematic) but let’s face it, whose family and personal circumstances are simple these days?

Dealing with blended families, people you’d like to exclude from a Will, managing different types of assets or if you’re a business owner, requires a more complex Will and certain expertise and knowledge.

You need someone to help you cater for your unique personal circumstances.

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Where do I get help with my Will?

There are many services available to help you with a Will, but you must be sure that the person attempting the task is not under qualified.

You should enlist the help of a professionally qualified expert such as Gill and Lane Solicitors who can help navigate any complexities you’re facing.

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What happens if I already have a DIY Will?

You should consult an expert such as Gill and Lane Solicitors and get a high quality and up-to-date Will before it’s too late.

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INTESTATE – WHAT HAPPENS WHEN THERE ISN’T A WILL

 

What does intestate mean?

If you die without leaving a Will you are said to die intestate.

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What happens if someone dies without a Will?

We often hear, all too often, from grieving family members asking for help after their mum, dad, brother, sister or other loved one has died without a Will.

Some studies have shown that that nearly one in two Australians don’t have a valid Will. An out-of-date or non-existent Will can result in unnecessary financial hardship and emotional stress for surviving spouses, family and friends.

 If you die without leaving a Will you are said to die intestate, so there is no formal evidence of who you wanted as your beneficiaries and who you wanted as your Executor.

In this case your estate is distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Although your family will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the ‘wrong hands’ or being allocated in a way you never expected or wanted.

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Who gets what if there isn’t a Will?

We’re often asked what happens to a deceased’s assets when there isn’t a Will and who decideds what.

The estate is distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Although your family will receive some of your estate, the situation is more complicated and problematic than people realise. Your assets may end up in the ‘wrong hands’ or being allocated in a way you never expected or wanted.

For example:

  • If you’re married you may think your husband or wife will automatically get everything. In fact, this is only the case if your estate is under a certain value. Your children may have a right to part of your estate or, if you have no children then your parents, brothers and sisters who survive you may take a share.
  • If you are living as a couple, but are not married, you may be treated as a single person and a surviving partner may get nothing.
  • If you are a single person, you may want your estate divided in the proportions you wish among friends, relatives and charities of your choice. Even if you have no immediate family, it is still important to make a Will.

Without a Will, in certain circumstances your estate may simply pass to the Government and you will have had no say in where your money or possessions will go. For example, if you die intestate and have no surviving relatives closer than cousins, the State Government will receive your estate.

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What do I do if a loved one has died without a Will?

You should seek advice from a professionally qualified expert such as Gill & Lane Solicitors to help guide you through the Intestate process.

 Contact Gill and Lane Solicitors for an obligation-free consultation to discuss your particular circumstances and needs – we have significant experience in Wills and Estates including Intestate situations.

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DECEASED ESTATES

 

What happens to deceased estates?

Losing a loved one and the administration of their estate is one of the most difficult times in anyone’s life.

The Estate Administration process can seem overwhelming and confusing with many people not knowing where to start.

A good Estate Administration Manager will help simplify and streamline the process as much as possible, while remaining accessible and keeping the lines of communication open.

Contact Gill and Lane Solicitors for an obligation-free consultation to discuss your particular circumstances and needs when it comes administering an estate.

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What is involved in the Estate Administration Process?

There are several steps required to administer an estate, but the key stages are as follows:

  1. Locate the Will
  2. Make funeral arrangements
  3. Conduct preliminary conference with family, legal representatives and business associates
  4. Advise beneficiaries and ascertain immediate needs of family
  5. Protect the assets
  6. Determine assets and debts
  7. Obtain Grant of Probate (if required) and attend to legal formalities
  8. Establish trusts
  9. Continued administration and asset management
  10. Calling in and/or transferring assets, obtain receipts and provide final statements to beneficiaries
  11. Distribute estate.
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Who administers a deceased estate?

When an individual dies the person nominated as their Executor is obliged to look after the assets of the deceased person and arrange for the person’s debts to be paid. The person is usually appointed as the individual’s Executor by the Will.

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What happens if the appointed Executor can’t administer the estate?

If an appointed Executor is unwilling or unable to fulfill their role, an application may be made to the Supreme Court for appointment as the Administrator of the Estate (we refer to the Administrator also as the Executor). This Order of the Court or “Grant” is referred to as “Letters of Administration”.

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What happens if there isn’t a Will?

If there isn’t a Will an application may be made to the Supreme Court for appointment as the Administrator of the Estate (we refer to the Administrator also as the Executor). This Order of the Court or “Grant” is referred to as “Letters of Administration”.

Refer to the section on INTESTATE – WHAT HAPPENS WHEN THERE ISN’T A WILL for more information.

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What is a Court Grant of Probate

An Order of the Court may also be referred to as “a Grant of Probate” – a Court order which is sometimes necessary and used to declare a deceased’s Will valid and that the person named in the Will as the Executor can finalise the deceased’s affairs.

A Grant of Probate is a formal recognition of a person’s right to administer the estate and gives that person the authority to deal with the world at large in relation to the distribution of the deceased’s property.

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When is Probate required?

The need for Probate in any Estate is largely governed by the attitude of individual financial institutions, insurance companies or similar. There are also certain circumstances where there could be risks attached to the distribution of the Estate assets without obtaining a Grant of Probate.

While an application to the Court incurs costs in advertising of the application in a newspaper, Court lodgement fees and legal costs, it is sometimes necessary before assets can be distributed.

For example, a bank account in the name of the deceased, as far as the bank is concerned, belongs to the deceased. If the bank is satisfied that another person has lawful authority over the account then it will release the funds to that person. If they’re not satisfied, they would require a Grant of Probate as that authority.

The same applies to land. The Registrar of Titles may, in certain circumstances, require a Grant of Probate before transferring land to another person.

Where a dispute may arise over the Estate a person appointed as Executor would be wise to apply for Probate. Where it is later determined a person does not have the right to deal with an Estate, or a Will with a more recent date is located, the Executor can be liable to beneficiaries.

A solicitor specialising in Wills and Estates, such as Gill and Lane can provide advice on whether Probate may be required.

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What happens after the Grant (of Probate) has been made?

After you have collected the Grant from the Supreme Court Registry, you physically take it or send it to the places where the deceased’s assets are held. For instance, if the bank requires the Grant, you take it to them and they will place a copy of the document with their records. Any money in the accounts will then be paid to the Executor to distribute in accordance with the Will.

Likewise, any land in the sole name of the deceased can be transferred to the beneficiary by taking the Grant to the Land Titles Office and making an application for that transfer.

Any debts of the Estate must of course be paid before the Estate is distributed. The Executor has a legal obligation to make those payments. In many ways the process is simply a lot of ‘leg work’ rather than being a difficult process.

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What does the Executor do?

A good Estate Administration Manager will walk the Executor through the process and explain what is required of them.

Essentially the Executor is obliged to look after the assets of the deceased person and arrange for the person’s debts to be paid.

They must always act in accordance with the Will and in an open manner so all concerned can see that you are carrying out the deceased’s wishes.

An Executor must always keep their own money and affairs separate from those of the deceased estate – especially where the Executor is not the sole beneficiary.

They must also remember to lodge that final tax return and seek expert advice about the tax implications of the disposal or retention of the deceased’s assets.

If you feel you need help in your role of Executor, contact Gill and Lane Solicitors for an obligation-free consultation to discuss your particular circumstances.

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Can I choose a different solicitor to administer an estate?

Often people feel obliged or under the impression that the solicitor that holds the deceased’s Will must also administer the estate – this is not true.

The Executor can appoint the solicitor of their choice to administer the estate regardless of who holds the Will.

The Executor has the right to change solicitors at any stage of the Estate Administration process if required.

It’s important that the Executor feels confident that the solicitor administering the estate is appropriately qualified and experienced and can simplify and streamline the process as much as possible.

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POWERS OF ATTORNEY

 

What is a Power of Attorney?

A Power of Attorney is a document used by a person or company to appoint another person or company to make legally binding decisions on their behalf.

Each Australian State and Territory has its own laws in relation to Powers of Attorney. It can be made for a specific purpose, a defined time period or for all financial or property affairs.

There are two types of power of attorney: General Power of Attorney and Enduring Power of Attorney.

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What’s the difference between a General Power of Attorney and an Enduring Power of Attorney?

A General Power of Attorney ceases to have effect after you lose the mental capacity to make financial decisions, whereas an Enduring Power of Attorney will continue to have effect regardless of your mental capacity.

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Do I need a General Power of Attorney and an Enduring Power of Attorney?

Yes, because they apply in different circumstances. A General Power of Attorney ceases to have effect after you lose the mental capacity to make financial decisions, whereas an Enduring Power of Attorney will continue to have effect regardless of your mental capacity.

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Who needs a Power of Attorney?

Having a General Power of Attorney and Enduring Power of Attorney is essential if you are:

  • A business owner
  • Travelling overseas, or interstate regularly or for a long period of time
  • Undergoing a serious medical operation
  • Likely to be incapacitated, out of action or out of contact for a significant period of time
  • Frail or have chronic illness.

Having a Power of Attorney ensures financial and property decisions and matters can be handled efficiently and in a timely manner.

For example if you make trips overseas or interstate, it may be useful to leave a power for your spouse or child to act for you. Likewise if you are going to have a serious medical operation that may have you ‘out of action’ for some time, then you should consider one.

Sole operators of businesses should consider one in the event they become temporarily incapacitated or out of contact for a significant period of time. Having a Power of Attorney will ensure the business is looked after from a legal sense.

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How is a Power of Attorney different to having a Will?

A Power of Attorney is different from making a Will, though you should consider developing or reviewing both documents at the same time.

In a Will you appoint an Executor to carry out how you want your assets distributed after your death. A Power of Attorney enables someone to make legally binding decisions for you while you’re alive but their power ends on your death.

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Who can be an ‘Attorney’?

While the Power of Attorney is the actual legal document outlining who can make decisions on your behalf, the term ‘Attorney’ is used to describe the person you appoint to make those decisions.

For this purpose, you can appoint whoever you wish to act as your ‘Attorney’ – including family members and professionals such as a Solicitor. However you need to consider the types of decisions that will be made and at what points they should be able to make decisions on your behalf.

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How do I make a Power of Attorney?

To make a Power of Attorney, you must be an adult capable of making your own personal and financial decisions. This means you must be able to:

  • understand the nature and effect of a decision
  • freely and voluntarily make decisions
  • communicate those decisions in some way.

You must also be able to understand the nature and effect of making a Power of Attorney, including the contents of, and consequences of preparing the legal document, as well as when the power begins and the documents must be witnessed in a appropriate way.

When doubt arises over whether a person has the capacity to make an Enduring Power of Attorney, the Queensland Civil and Administrative Tribunal (QCAT) can make a decision about that person’s decision-making capacity.

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Choosing the right ‘Attorney’ (for a Power of Attorney)

You should choose someone you trust who’d be willing to take on the responsibility. They must be at least 18 years old and not be your paid carer. (Note: A person receiving a carer’s pension is not regarded as a paid carer.)

For personal matters, consider family members or a close friend who understands your personal wishes and health care needs.

For a financial Attorney, consider someone who is responsible with their own money and understands financial matters.

Be careful of who you choose as your Attorney.

You’re potentially giving another person total control over your assets and the ability to make personal decisions about your health care and accommodation when you can’t do so yourself.

Contact Gill and Lane Solicitors for an obligation-free consultation to discuss your particular circumstances and needs when it comes to a Power of Attorney.

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What should I consider when appointing a Power of Attorney?

You can decide who, what and when a Power of Attorney is required. You should consider the following questions:

  • Will you have more than one Attorney, and if so are they to act jointly or may they act individually?
  • Do you give the Attorney full powers, specific (eg. to sell your home) or limited powers? If an Attorney is to benefit from a transaction, then the Attorney must be specifically authorised to benefit.
  • When will the Power commence – immediately on signing, on a given date or only when you are incapacitated? Though it’s worth noting that if you choose the last option it will require medical evidence and may lead to unnecessary costs for doctor’s reports.
  • Will you pay Attorney to act for you? If you appoint a Solicitor or an Accountant as your Attorney, they will require the insertion of a charging Clause in the document. A private individual is not permitted to charge for acting in the capacity as your Attorney.
  • If you are incapacitated, will your Attorney get to decide where you live, when you go on holidays or what medical treatment you should receive?
  • Can medical treatment be withheld on the say of a Attorney who may also be a beneficiary under your Will?

Whatever you decide upon, it is essential that your affairs are kept completely separate from your Attorney’s affairs. The Attorney must act in good faith and unless specifically authorised, must not benefit from the Power.

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What are the Attorney’s responsibilities when it comes to a Power of Attorney?

The Attorney appointed via a Power of Attorney document must:

  • act honestly and with care
  • recognise right to confidentiality
  • consider existing supportive relationships, values and culture
  • apply the general principles under the Powers of Attorney Act 1998.

In relation to health care decisions, the Attorney must:

  • ensure any decision made contributes to the person’s health and well-being
  • choose the least intrusive method of treatment where possible
  • consider the individual’s views and wishes
  • consider the advice of the doctor or other health care providers
  • comply with the health care principles under the Powers of Attorney Act 1998.

In relation to financial matters, the Attorney must:

  • keep records and accounts of dealings and transactions
  • keep the individual’s property separate from their own (unless it is owned jointly)
  • not give away the person’s property, and make only reasonable gifts for birthday or Christmas presents or donations that the individual would nromall give themself.Return to the top of the page.

What powers can be given to an Attorney?

You can give your Attorney the power to:

  • decide on personal matters, such as where you live and who you have contact with
  • agree to most health care issues, including medical and dental treatment, and withdrawing or withholding of life-sustaining measures
  • control your finances, including collect your income, pay your bills and taxes, sell or rent your home, use your income to pay for your needs or invest your money.
  • The power of your attorney ends with your death. If you retain capacity, you may revoke a general power of attorney at any time. You may revoke an enduring power of attorney at any time until you lose capacity.

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What happens if an Attorney acts improperly?

While not a common occurrence, there may be instances of an Attorney acing improperly, such as spending assets unwisely or selling the family home inappropriately. In such a case, Power of Attorney can be revoked, and Attorneys can be investigated by the Public Guardian and their decision-making powers suspended if necessary.

Contact Gill and Lane Solicitors for an obligation-free consultation to discuss your particular circumstances and needs when it comes to a Power of Attorney.

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Can I change my mind?

You can revoke or update a Power of Attorney document at any time, as long as you have the decision making capacity to do so and it is done in a legally binding way.

Contact Gill and Lane for advice on changing your Power of Attorney.

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ADVANCED HEALTH DIRECTIVES

 

What is an Advanced Health Directive?

In Queensland, an advance health directive (AHD) (or living Will) is a formal way to give instructions about your future health care. It comes into effect only if your cognitive health deteriorates and you become unable to make your own decisions.

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Do I need an Enduring Power of Attorney and an Advanced Health Directive? What’s the Difference?

While an Enduring Power of Attorney can be used to appoint someone to make health care decisions on your behalf, an Advanced Health Directive may also be beneficial in some circumstances where specific care instructions are required.

The two documents should be prepared in conjunction with each other.

An advanced health directive can include specific details and information that health professionals should know, including health conditions, allergies, and religious, spiritual or cultural beliefs that could affect your care.

You can give specific instructions about certain medical treatments, such as whether you want to receive life-sustaining measures such as tube feeding or resuscitation.

It can also be used to outline the quality of life that would be acceptable to you in case of severe or irreversible illness, injury or brain damage.

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Who needs an Advanced Health Directive?

An Advanced Health Directive is particularly important if:

  • you’re about to be admitted to hospital
  • your medical condition is likely to affect your ability to make decisions
  • you have a chronic medical condition that could cause serious complications, such as diabetes, asthma and heart or kidney disease.
  • you have a terminal illness with no known cure or chance of recovery.
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Who can make an Advanced Health Directive?

You can make an advance health directive if you’re over 18 and have the capacity to do so.

Speak to Gill and Lane for advice about Advanced Health Directives.

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SUPERANNUATION AND BINDING DEATH BENEFIT NOMINATIONS

 

Does superannuation need to be included in my Will?

Nominating a beneficiary with your super fund provider may not be enough to secure your wishes when it comes to distributing your superannuation benefit and any associated life insurance.

If you have superannuation, particularly if it includes a life insurance component, you may require a specific Binding Death Benefit Nomination to ensure your nominated beneficiary receives the benefits you intended.

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What is a Binding Death Benefit Nomination?

A Binding Death Benefit Nomination is a written direction to the Trustee of your superannuation fund that sets out who you want to receive your benefit in the event of your death. However you should firstly make enquiries from the Trustees of your superannuation fund if they will accept a Binding Death Benefit Nomination.

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Why do I need give instructions about my superannuation?

What many people don’t realise is that superannuation benefits are not considered part of an overall estate.

So while a Will is a legally binding document that nominates who should receive what from your estate, it does not apply to your superannuation benefits.

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What if I already nominated a beneficiary for my superannuation fund?

When you set up your superannuation fund and any associated life insurance you would have nominated beneficiar(ies) who in most cases will receive the benefits upon your death.

However if there is any dispute or confusion between your Will beneficiar(ies) and your superannuation beneficiar(ies), the Trustees will be left with a decision about where to allocate the benefits – a decision you have no control over. This may result in lengthy delays and benefits being paid to unintended recipients.  

A Binding Death Benefit Nomination provides greater certainty about who will receive your superannuation benefit in the event of your death. If your Binding Death Benefit Nomination is valid and in effect at the date of your death, the Trustee must pay your benefit to the beneficiaries you have nominated in the proportions set out in your Binding Death Benefit Nomination.

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Who can I nominate as a beneficiary?

You can nominate one or more of your dependants and/or Legal Personal Representative (see the definitions for these below). The most appropriate beneficiaries to nominate in your binding death benefit nomination will depend on your personal circumstances. As there may be taxation implications arising, it is recommended that you seek professional advice before making a nomination.

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What makes a Binding Death Benefit Nomination valid?

There are certain conditions that must be met to ensure that your binding death benefit nomination is valid. These are:

  • The nomination must be in favour of one or more of your dependants and/or your legal personal representative
  • Each dependant nominated must be your dependant at the date of your death
  • The allocation of your benefit among the beneficiaries nominated must be clearly set out
  • 100% of you benefit must be allocated. The entire nomination will be invalid if the allocation does not equal exactly 100%
  • The nomination must be signed and dated by you in the presence of two (2) witnesses both of whom are over the age of 18 years and not nominated to receive the benefit, and
  • The nomination must contain a declaration signed and dated by each witness stating the notice was signed and dated by you in their presence.

Your valid binding death benefit nomination may remain in effect even if your personal circumstances change. It is therefore important that you amend your Binding Death Benefit Nomination if there is a significant change in your personal circumstances such as marriage, divorce, the death of a nominated dependant or the birth of a child.

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How long does a binding death benefit nomination remain valid for?

A valid Binding Death Benefit Nomination remains in effect for three (3) years from the date it is first signed, last amended or confirmed. A Binding Death Benefit Nomination does not take effect until it has been received and accepted by the Trustee.

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Can I change a Binding Death Benefit Nomination?

You can amend or revoke your Binding Death Benefit Nomination at any time. To amend your binding death benefit nomination you must complete a new Binding Death Benefit Nomination form and provide it to the Trustee. You must provide written notice to the Trustee if you wish to revoke it. If you wish to continue a Binding Death Benefit Nomination you must advise the Trustee in writing prior to the expiry date.

A valid binding death benefit nomination will override any preferred beneficiary nomination that you’ve previously made.

Some funds will not accept a binding death benefit nomination made under a power of attorney.

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What is meant by ‘dependants’?

Dependants means:

  • Your spouse
  • Your child (or your spouse’s child) of any age, including an adopted child, foster child, ward or child within the meaning of the Family Law legislation
  • Any person who was in an interdependency relationship with you at the date of your death, and
  • Any other person (irrespective of age) who in the opinion of the Trustee, is or was in any way financially dependent on you at the date of your death.
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What is meant by ‘spouse’?

 Spouse means:

  • A person with whom you are legally married, or
  • A person, whether of the same sex or a different sex, with whom you are in a relationship that is registered under an Australian State or Territory law, and
  • A person, (whether of the same sex or a different sex), with whom you are not legally married but who lives with you on a genuine domestic basis as a couple.
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What is an interdependency relationship?
An interdependency relationship exists between two people (whether or not related by family) if they live together in a close relationship and one or each of them provides the other with financial and domestic support, and personal care. An interdependency relationship may include a parent and child, or brothers and sisters.

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Who is my legal personal representative?
Your legal personal representative is the Executor of your Will or the Administrator of your Estate. You can nominate your legal personal representative to receive the whole or part of your benefit. If you nominate your legal personal representative on your binding death benefit nomination, your benefit will form part of your estate and be distributed in accordance with your will (if you have one), or in accordance with the laws that govern people who die without a will.

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CONTESTING A WILL

 

What can I do if I was left out of a Will?

Spouses (including de factos), children (including step and adopted children) and some dependants (parents of the deceased person, the other parent of a child under 18 who is the child of the deceased person, or anyone under 18 who was dependant on the deceased person) can make a claim if they can show they were not adequately provided for in the Will.

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How do I challenge or contest a Will?

In Queensland it is necessary to apply to the Supreme Court to challenge the Will. The court will take into account all the circumstances of your life, the size of the estate and the relationship between you and the deceased.

Time limits apply to these applications. Contact Gill and Lane Solicitors for advice on contesting or challenging a Will.

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Disclaimer
The information provided here is a guide prepared by Gill & Lane and is not legal advice. The facts of each case will be different and you must satisfy yourself that this information is appropriate for the particular case or circumstances for which you intend to use the information. Gill & Lane are not providing legal advice nor do Gill & Lane warrant that this information is entirely free of defects or fit for any specific purpose and Gill & Lane do not accept any liability for any errors or omissions in the information and any loss or damages resulting from or connected with the use of the information.

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Greg Lane, Principal