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Wills and estate planning law includes wills, which may include testamentary trusts, power of attorney which may include enduring power of attorney and enduring guardianship.
A will is a legal document that determines what happens to a person’s assets after their death. Most people at some point in their life will want to organise what will happen to their assets after they pass away. A wills and estates lawyer can assist you with this.
The wills and estate lawyers at Brander Smith McKnight take the time to listen carefully and thoroughly to your needs and wishes and then advise on the most appropriate documents and structure for you.
Our lawyers then meticulously draft your documents, providing you with the opportunity to review these prior to finalisation. An individualised and well constructed legal document will minimise future disputes. It will ensure that your assets are distributed according to your wishes and that unnecessary financial burdens will not befall your loved ones.
We pride ourselves on creating water tight documents in Sydney for a low fixed fee.
Brander Smith McKnight Lawyers also provide professional legal advice and advocacy for executors in any estate including granting of probate, letters of administration, distribution and contested estates.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
Power of attorney and enduring guardianship are legal documents concerning your legal wishes and affairs whilst you are alive. Power of attorney allows a person to act on your behalf in financial and contractual matters. Enduring guardianship allows a person to act on your behalf in relation to medical and lifestyle conditions such as where you live.
Our wills and estates lawyers will explain and guide you through the process of creating these documents. This includes nominating the person or persons that you would like to act on your behalf. This person is referred to as the attorney. Our highly experienced Sydney lawyers will ensure that you fully understand the implication and responsibilities that this entails.
Why should I use a Wills and Estates Lawyer?
The wills and estates lawyers at Brander Smith McKnight will create water tight documents so that management of your assets and interests following your death are in keeping with your intentions. An individualised and well drafted will helps prevent future disputes. It will ensure that your assets are distributed properly and that unnecessary financial burdens will not befall your loved ones.
Our highly experienced Sydney lawyers will also create water tight documents that clearly set out how you want your affairs managed while you are alive. This includes who can manage your financial and contractual matters and decisions regarding your medical treatment and lifestyle conditions. If these documents are not created or are poorly drafted your wishes and intentions may not be followed.
A wills and estate lawyer will ensure that you consider important legal issues, such as
- Who will be the executors of your will?
- Do you need to pay any debts following your death?
- Do you want to gift any of your assets to specific people?
- Should you establish a testamentary trust?
- Who will make your health and lifestyle decisions if you lack the capacity to make these decisions for yourself?
- Who will make financial decisions on your behalf for short periods, such as while travelling?
- Who will make financial decisions on your behalf if you lack the capacity to make these decisions for yourself?
In addition to providing expert legal advice, our wills and estates lawyers will listen to you thoroughly, follow your instructions and draft legally binding documents.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
Power of Attorney
Power of attorney is a legal document created to allow another person or persons, referred to as the attorney, to act on your behalf in financial and contractual matters.
You may want to consider organising the creation of a power of attorney document if you would like your attorney to manage a financial transaction whilst you are overseas.
An enduring power of attorney continues to be effective if a person loses mental capacity.
Brander Smith McKnight’s highly experienced wills and estates lawyers can assist you in drafting effective power of attorney and enduring power of attorney documents. We will ensure that these are comprehensive and binding. Our lawyers will ensure that you fully understand the implications of these documents and the responsibilities they create.
Enduring Guardianship
Enduring guardianship refers to the appointment of a person or persons who is allowed to make decisions relating to your health and lifestyle in circumstances where you cannot make these decisions for yourself.
Enduring guardianship is distinct from power of attorney because it does not authorise a person to make financial decisions on your behalf.
You may want to consider appointing someone as your enduring guardian if you want to be prepared for unforeseen circumstances where you can no longer make lifestyle and health decisions for yourself.
Brander Smith McKnight’s expert wills and estates lawyers can assist you with drafting effective enduring guardianship documents. We will ensure that these are comprehensive and watertight. Our Sydney lawyers will ensure that you fully understand the implications of these documents and the responsibilities they create.
Probate
Probate is the proving of a will and the granting of authority by the Supreme Court for the executor to act on behalf of the estate. If you are the executor of a will and the maker of the will (the testator) has passed away we can assist you by applying to the Supreme Court of NSW to obtain probate. Once the Supreme Court grants probate, we then have authority to act on behalf of the estate to make distribution to the beneficiaries.
In the case of smaller estates that don’t include real estate, we can advise you whether or not probate is required.
Our wills and estates lawyers are very familiar with the intricacies of this arm of the legal system and are able to guide you through this complex process.
If a person dies without a will, legally referred to as intestate, we can make an application for letters of administration. These provide authority to act on behalf of the estate.
Will Disputes
Will disputes may occur due to poorly drafted wills, where parties believe they have been excluded from the will or where parties believe the provisions of a will are inadequate. Disputes can also occur if the executor is considered unfit, where the will has errors or mistakes or the validity of the will is challenged.
It is important to seek legal advice and assistance promptly if you wish to challenge a will as time limits may apply.
Brander Smith McKnight have extensive experience in all matters of will disputes and can assist you through this process.
Updating Wills
Wills may need to be amended and updated as your circumstances change, for instance getting married or divorced. A marriage will revoke any existing will unless the will is drafted to specifically mention a future marriage. Conversely, a divorce will not revoke your will. Furthermore, the effect of divorce on your will is different in every state. We can advise you on these effects and recommend that we prepare a new will for you after your divorce.
Other reasons that you may need to update your will include birth of a child, death of a beneficiary, addition of a beneficiary, change of executor or change of guardian for your minor children, buying or selling a business or you have more assets to distribute.
Our wills and estates lawyers can assist you in updating your will so that it reflects your current situation and most recent intentions.
Why choose BSM Lawyers
We always take the time to listen carefully and thoroughly to your needs, we then advise on the most appropriate documents and structure for you.
Our lawyers meticulously draft your documents, including wills, testamentary trusts, power of attorney, enduring power of attorney and enduring guardianship. We provide you with the opportunity to review these prior to finalisation.
We pride ourselves on creating watertight documents in Sydney for a low fixed fee.
Brander Smith McKnight Lawyers also provide professional legal advice and advocacy for executors in any estate including the granting of probate, letters of administration, distribution and contested estates.
We have offices conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
FAQs
What is a will?
In simple terms, a will is a document that provides for the distribution of a person’s assets following that person’s death. A will also outlines who is responsible for administering your will.
A will is typically drafted to outline the specific intentions of the will maker and must be signed and witnessed.
A will can be tailored to reflect your specific circumstances and instructions.
Do I need a will?
You do not need a will, however you should consider the benefits of having a will.
Having a will can give you the peace of mind that comes with knowing that your estate will be managed effectively and in accordance with your instructions in the event of your death.
Having a will can also ensure that your loved ones do not have to pay unnecessary costs following your death. In addition, clearly setting out the intentions in a will can avoid the chances for disputes arising out of the will.
Should I draft my own will?
You can draft your own will, however you should consider having your will drafted by a wills and estates lawyer.
There are several complications that can arise where someone has drafted their own will. This is because there are various legal considerations that someone drafting their own will may fail to consider. Having a poorly drafted will can also result in unnecessary costs being imposed on your family.
Having your will drafted by a lawyer ensures that your will is legally effective and can be executed properly and efficiently. A lawyer can also tailor the drafting of a will to reflect your instructions and circumstances. Further, a lawyer can ensure that you fully understand the rights and responsibilities that are created by your will.
What happens if I die without a will?
If you die without a will, you will be legally considered to have died intestate.
State law regulates the distribution of assets of people who have died without a will.
If you die without a will your assets may not be distributed in the way you intended them to be. In addition, disputes may also arise between potential beneficiaries of your estate.
To avoid the problems that may occur if you die without a will, you should consider having a will drafted for you by a wills and estates lawyer.
Can I change my will?
A will can be changed as often as you wish and only takes legal effect upon your death.
If you want to make a change to your will you should consider having a lawyer do so.
This is because a lawyer can ensure the amendment of your will is legally valid.
How much will a will drafted by a lawyer cost?
Brander Smith McKnight’s wills and estates lawyers provide meticulously drafted wills that minimise future risks in a cost-effective manner with a fixed fee.
Are there any kinds of assets that should not be included in a will?
There are various assets that you should avoid including in your will. For example, you should not include jointly owned assets in your will.
What is a beneficiary?
Put simply, a beneficiary is the title given to a person who is entitled to certain benefits from a will.
For example, a will may provide that one of its beneficiaries is entitled to the deceased’s house or car.
A will can provide for multiple beneficiaries and divide assets between them in accordance with the will maker’s intentions.
A wills and estates lawyer can inform you of the various rights that are held by beneficiaries.
What is an executor?
An executor is best described as a person determined by a will-maker to be responsible for the administration of their will. As such, an executor is responsible for the management and distribution of a will-maker’s property after they die.
Executors also have certain duties which include, but are not limited to:
- The burial of the deceased
- Paying remaining debts owed by the deceased
- To distribute the deceased’s assets in accordance with the will
Is there a difference between a will and estate plan?
A will is a document that determines how a person’s assets are to be distributed when they die.
An estate plan encompasses several documents that provide a detailed outline regarding a person’s financial and health issues that can be used when a person either dies or becomes incapacitated.
A wills and estates lawyer can provide you with assistance in drafting both wills and estate plans.
What might invalidate a will?
A will may be invalidated for a variety of reasons, some of which include:
Instances where a will-maker has been subject to undue influence. Undue influence refers to instances where a party has improperly exploited a position of trust or influence over the will-maker. Evidence of undue influence may indicate that a will-maker has prepared their will in a way that was not free and voluntary.
Instances where it is alleged that the will has been forged. For example, a will may be invalidated where someone has forged signatures to the will.
Instances where there is evidence that the will-maker was mentally incapable of making a valid will. For example, a will may be invalidated where it has been drafted by someone with a serious mental illness.
When should I review and update my will?
You should consider reviewing and updating your will regularly as the circumstances of your life change. For example, you may want to consider changing your will if:
- You have a new child
- You get divorced
- A beneficiary dies
- You have more assets to distribute
- You want to remove a beneficiary from your will
- You want to add a beneficiary to your will
- You have sold a business
- You have bought or started a business
- You get married
- Change of executor
- Change of guardian for minor children
Do I still need a will even if I do not have many assets?
You do not need to have a will, but you should consider having a lawyer draft you a will even if you do not have many assets.
This is because not having a will can result in unwanted expenses being incurred by your family and disputes between potential beneficiaries to your estate.
Further, even if you do not have many assets, you risk the assets you do have not being distributed in the way you would like them to be if you do not have a legally valid will.
What are family provision claims?
Family provision claims are a type of application that is made to the Supreme Court.
A family provision claim is a means by which certain people can claim that they are entitled to receive a provision or a greater provision of a deceased’s estate.
Family provision claims are often made where a party feels that they have been unfairly left out of a will or has not received what they were entitled to from a deceased’s estate.
Why do will disputes occur?
Will disputes can occur for a variety of reasons, some of which include:
- Instances where the validity of a will is challenged
- Instances where there are conflicting interpretations of the terms of the Will
- Instances where an executor is considered to be unfit
- Instances where the will includes errors or mistakes
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