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Part of being a lawyer is to talk to people about what they want to happen when they lose the capacity to look after themselves, when they completely lose mental capacity, and when they die. It is a little bit morbid but it is the consequence of our human condition that we do not live forever and that we want to look after those that we leave behind as best as we possibly can.
While a testator (that is, a person who is writing a will) is entitled to bequest his or her assets to whomsoever they wish, they should do so with proper advice about the legal consequences of a particular form of will.
The role that equity and statute play in how our estate is dealt with on our death is pervasive. For example the Succession Act 2006 (NSW) provides opportunity, in certain circumstances, for disgruntled persons (who may not even be relatives) to make a claim on a deceased estate. There is no shortage of media stories about a deceased’s lover or children fighting with the surviving spouse or others for a share of an estate.
You might also want to consider whether a Testamentary Trust is appropriate for your estate. Wills containing testamentary trusts are often considered if you wish to take into account tax implications, family law matters or a spendthrift beneficiary. Such wills create ongoing obligations for the trustee and should only be drafted on the basis of careful advices.
Telemon Lawyers can help you understand the effect of the law on your testamentary wishes and draft a will that seeks to implement those wishes in the safest way.
Estate planning
- The administrator of Bob’s estate has died before completing administration. What happens from here?
- I’ve heard if you don’t leave a will your estate can go to the Government. Is that true?
Wills
- I have a ‘blended’ family, how should I prepare my will?
- Discretionary Family Trusts
- I think I deserved more out of my parents’ estate. What can I do about it?
- Should my will include a Testamentary Discretionary Trust?
- I have assets overseas, are they covered by my Australian will?
- I’ve heard if you don’t leave a will your estate can go to the Government. Is that true?
- What is a ‘living will’?
- I want to leave a bequest to a husband and wife together, is the gift as joint tenants or tenants in common?
Power of Attorney
- I have executed an Enduring Power of Attorney naming my son as attorney, can he make decisions without me knowing?
- What’s the difference between appointing “joint” and “joint and several”?
- What is a Power of Attorney?
Enduring Guardian
Probate
- Can I make a claim against an estate where I have been left out (or not left enough)?
- Can I avoid obtaining a grant of probate in an estate?