Wills, Enduring Power of Attorney, appointment of Enduring Guardian

For generations, Nash Allen Williams & Wotton solicitors have provided comprehensive, expert advice on all aspects of will making and succession law and are undoubtedly among the most experienced wills and estates lawyers on the Central Coast.

Our solicitors advise on drafting wills; on the administration of deceased estates, including applications for probate or letters of administration, executor duties, the distribution of estate assets according to law, family provision claims and other challenges to the validity of a will.

We can also advise on and draft enduring power of attorney and appointment of enduring guardian documents.

As a free service to our clients, we can hold those important documents in our purpose-built safe custody room, for when those documents are eventually needed by our clients or their family.

WILLS

A valid will is an important and formal document that records how the will maker wants their assets distributed after they die. A valid will in NSW must meet a number of formal legal requirements, which our solicitors will ensure are met. We will help you to ensure a smooth transfer of wealth from one generation to the next and enable you to exercise as much choice and control as possible over your financial affairs.

We recommend that any person with assets in NSW should make a valid will, but it is an especially important consideration following a significant change in one’s personal circumstances such as the birth of a child, when you marry or separate, when you buy a house, or when you buy or start a business, as examples. A will prepared by Nash Allen Williams & Wotton solicitors will ensure complete peace of mind for the will maker and provide certainty for those administering it.

Nash Allen Williams & Wotton solicitors can prepare simple wills or, if the need arises, can prepare more complex wills including testamentary discretionary trusts. Whether you need a simple will or a will that includes a testamentary discretionary trust (or trusts) will depend upon your personal circumstances and your particular wishes. Our solicitors will discuss your wishes with you and advise the best way to give effect to them.

ENDURING POWER OF ATTORNEY AND APPOINTMENTS OF ENDURING GUARDIAN

A person who has mental capacity (that is the mental capacity to make decisions in their own best interests) may, of course, make such decisions about their own day-to-day life as they wish. It is important to consider though, how decisions will be made if one should ever suffer a loss of mental capacity.

The law allows a person (the principal) to appoint another person or people to make decisions for them in relation to their finances, business, and property affairs by appointing an enduring power of attorney; and in relation to healthcare, medical and lifestyle decisions by appointing an enduring guardian.

Nash Allen Williams & Wotton solicitors can provide expert advice in relation to these appointments including tailoring the power to meet the principal’s individual circumstances and building in appropriate safeguards.

We also provide advice to attorneys and guardians who are under a duty to act in the principal’s best interests. Our solicitors can advise attorneys and guardians in relation to their duties to help ensure they do not exceed their power and leave their actions open to challenge.

NCAT (the New South Wales Civil and Administrative Tribunal) has authority to deal with issues that may arise regarding the appointment of power of attorney and enduring guardians and the decisions they make. The Tribunal also has power to appoint a person to make decisions for someone who has lost capacity, but who has not made a valid appointment of power of attorney or enduring guardian. Our experienced solicitors can help you either make or respond to an application before the Tribunal.

ADMINISTRATION OF DECEASED ESTATES

If you have suffered the loss of a loved one, the probate and deceased estate administration experts at Nash Allen Williams & Wotton solicitors are here to make the process as stress-free as possible.

Where the deceased has left a valid will, Nash Allen Williams & Wotton solicitors will act for the executor and deal with the application for the grant of probate and advise on the distribution of the estate in accordance with the will.

If the deceased has died without leaving a will, our expert team of solicitors will guide you through the legal and practical issues that arise when there is no will, such as applying for a grant of letters of administration and advise on the distribution of the estate in accordance with the intestacy rules.

If a claim is brought against the estate our experienced solicitors will advise the executor and ensure the interests of the estate are protected.

FAMILY PROVISION CLAIMS AND CONTESTED WILLS

Disputes over wills can make a difficult time even more trying. Claims can be made against a will or estate for a variety of reasons. Examples include:

• when someone feels unfairly left out of a will;
• where the will has not made adequate provisions for certain dependants as required by the Succession Act 2006;
• when the deceased had promised part of their estate to someone, but this promise wasn’t reflected in the will;
• when someone alleges that the deceased did not have the mental capacity to make the will or they were forced into making their will in a certain way,

Disputes about any of these issues can be costly and time-consuming. Often, the outcome is uncertain and the process can be difficult for the executor and the beneficiaries involved. Our solicitors can advise and act whether court proceedings are commenced or whether the parties would prefer to reach a negotiated settlement. We will also advise on the potential usefulness of various alternative dispute resolution methods, including mediation. Alternatives can often provide a quicker, more cost-effective method of providing clients with a satisfactory solution.

Our solicitors can help you resolve disputes as quickly and harmoniously as possible whether you are making a claim or defending against a claim.

If you think you have been unfairly left out of a will or you have not been adequately provided for or you find yourself in a situation where there is a problem with a will, you should seek timely advice as only certain people are eligible to claim on a will and strict time limits to make a claim in NSW do apply.

Wills, Power of Attorney and Appointment of Enduring Guardian FAQs

Are Wills Confidential?

Wills are confidential documents during the will maker’s lifetime. Even after the will maker’s death, the contents of the will remains private up until the Court issues a grant of probate at which time the will becomes a public record.

However, in New South Wales, section 54(2) of the Succession Act 2006 found HERE sets out who is entitled to inspect or view the will of a deceased person after they pass away.

Can I Appoint my Beneficiary as my Executor?

Yes, and often that is most appropriate. A very typical example is where a wife makes a will giving the whole of her estate to her husband and makes him the executor also.

There may be circumstances though where a key beneficiary ought not be made an executor. Think of a case where a parent wishes to make provision in their will for their child who lives with a significant cognitive disability and so cannot manage their own finances. In this case another person would need to be appointed as executor.

Who to appoint as executor (and indeed as a substitute executor) can be quite obvious in some circumstances and can be a vexed issue in others. Our expert solicitors are more than happy to work with you to understand your circumstances and provide workable solutions in your particular case.

Are ‘Do it Yourself’ Wills Valid?

Do It Yourself (DIY) wills are allowed in NSW and are valid IF the formal rules for wills are correctly followed. There is no ‘approval system’ for wills in NSW and a DIY will won’t be ‘checked’ for validity until it is presented to the Supreme Court of NSW by the executor who is seeking a grant of Probate after the will maker has passed away. Each State has legislation that sets out the formal rules a will must comply with in order to be valid in that State.

If a person writes a DIY will there is a great risk it will not comply with the formal rules and be ‘invalid’ thus putting the will maker’s actual intentions in some doubt and costing the estate more to administer.

It is more prudent to see a competent solicitor, discuss your intentions and wishes with them and have a formal, valid will drawn up.

Give me Some of the Reasons Why I Should Do a Homemade Will or a ‘Do it Yourself’ Will or a ‘Post Office’ Will Rather than a Will Prepared by a Solicitor?

We looked pretty hard and couldn’t find any. There are none.

What is a Testamentary Discretionary Trust and do I Need one in my Will?

Everyone’s personal circumstances are different. Some will makers feel that a ‘simple’ will meets their needs and others see benefit in a will that includes a testamentary discretionary trust or trusts. It a personal choice and reasonable minds may differ when it comes to making the decision.

A testamentary discretionary trust (or trusts) in a will offers beneficiaries a number of advantages they simply do not get if the inheritance passes to them under a ‘simple’ will. Just some of those advantages include:

1. Tax advantages – through ‘income streaming’, income earned by capital assets held in a testamentary discretionary trust may be distributed across numerous beneficiaries rather than to just one person (who may already pay considerable income tax) thus potentially lowering the amount of overall income tax paid on that income;
2. Bankruptcy – an inheritance passing to a beneficiary who is an undischarged bankrupt is usually protected from their creditors. This is not the case with an inheritance that passes to an undischarged bankrupt under a ‘simple’ will;
3. Family Law/ divorce – an inheritance passing to a beneficiary who becomes involved in family law property proceedings is protected to some extent. Generally, that beneficiary will fare better in the Family Court where their inheritance is held inside a testamentary discretionary trust;
4. Other advantages – should a beneficiary be a person living with a disability; be a person who has drug, alcohol, or gambling issues; or be a person who may be vulnerable when it comes to the management of their finances, an inheritance passing to that person through a testamentary discretionary trust can be more beneficial than simply giving that person a one-off lump sum through a ‘simple’ will.

Opinions on whether you should go to the additional expense of having your solicitor prepare a testamentary discretionary trust will or not do vary. Discussing your particular circumstances with one of our expert solicitors and make an informed decision.
Nash Allen Williams & Wotton’s solicitors can prepare simple wills or testamentary discretionary trust wills as the client’s needs dictate.

Check out the blog section of our website where we go into testamentary discretionary trust wills in more detail.

Are Life Insurance and Superannuation Included in my Estate?

The proceeds from any life insurance or from superannuation are not automatically dealt with in your will. Your policy providers should be able to tell you how your benefits are dealt with upon death.

For life insurance held with your superannuation fund it is prudent to ask your fund whether you can make a ‘non-binding death nomination’ or a ‘binding death nomination’ with them. You should also ask whether any nomination you make is either ‘lapsing’ or ‘non-lapsing’.

It is beyond the scope of these FAQ’s to fully explain how superannuation benefits pass following the death of a member, but it is sufficient that you at least know:

• whether or not you have made a binding death nomination;
• whether that nomination ‘lapses’ and if so, when; and
• who you have nominated as beneficiaries.

You can certainly contact your fund to talk to them about it.

For life insurance held outside the superannuation environment, make sure you know how any benefit is paid and to whom.

Is an Enduring Power of Attorney Valid after Death?

No, upon the death of the principal, the power of attorney ceases.

What happens is the deceased’s estate immediately ‘vests’ (that means ‘belongs to’ or is ‘owned by’) the NSW Trustee until a grant of probate or letters of administration is made. Once a grant is obtained and the estate can be administered by the person who obtains the grant.