Estate Planning, Wills & Probate

Our Perth estate planning lawyers can help you with planning for the unexpected during your lifetime by appointing people you trust to make financial and personal decisions for you if you have an accident, become ill or incapacitated, as well as planning what will happen to your property upon your death.

Culshaw Miller Lawyers is experienced in:

  • Family trusts;
  • Creating Wills;
  • Enduring Powers of Attorneys;
  • Powers of Attorney; and
  • Corporate structure.

Wills

How do I know if I need a Will?

If you have property in your own name (including superannuation), you need a Will to properly set out your wishes for distributing your estate upon your death. A solicitor experienced in Wills is fully qualified to give you the appropriate advice about your options and to prepare a Will for you.

You must be 18 years or older to make a Will and have legal capacity which means that you must be able to understand the nature and effect of the document you are signing, the nature and extent of your estate and the people who may have a claim upon your estate. In South Australia, a Will is revoked by marriage and by divorce (importantly, note that in South Australia a former spouse can still make a claim for family provision).  If either of those events occur, your Will is void and you will need to prepare a new Will at that time. You can make Wills in contemplation of marriage or divorce which will overcome that particular issue.

What happens if I don’t have a Will?

If you pass away without a properly prepared Will, it can be expensive to deal with the legal issues that arise in administering the estate. If you do not have a Will, the estate will pass to family members set out in legislation called the Administration Act. These family members may include one or more of your spouse, separated spouse, de facto partner, children, parents, siblings, nieces and nephews, whether or not you want those people to benefit. If you have a Will, you can specify who you want to administer your estate and who will benefit from it.

What is the purpose of having a Will?  Why should I have one?

A Will is essential for every adult with assets (including superannuation). When you make a Will you will appoint a person to administer the estate after you pass away (the executors), and will also specify who will receive the estate (the beneficiaries).

Why do I need a solicitor to draft my Will?

A Will is one of the most important documents that you will sign. You can prepare your own Will, however, you may need advice that is tailored to your financial situation and family circumstances. A solicitor can advise you on the current legislation to ensure that your Will is valid and discuss with you ways to plan the distribution of your estate to minimise the chances of a dispute.

Drafting your own Will without appropriate advice may mean that the Will is ineffective by failing to:

  • Deal with all of your assets, creating a partial intestacy and further difficulties in administering the estate;
  • Execute the Will properly in the presence of two independent witnesses;
  • Appoint an executor (or an appropriate executor);
  • Set out clearly your wishes as to the disposition of your estate.

There are strict requirements that must be complied with to ensure a document is a valid Will and a solicitor experienced in Wills will be able to advise you to ensure the document is prepared and executed appropriately. Wherever and whatever your personal or business assets are, it is important to receive professional advice about your Will to ensure that it accurately reflects your circumstances and that it will benefit your loved ones.

Enduring Powers of Attorney (EPA)

What is an EPA?

This is a document by which you appoint a person of your choice to make financial and property decisions on your behalf if you become ill, have an accident, are away from the state or country or for any other reason. Most importantly, you can appoint someone you trust to make decisions for you if your lose legal capacity in the future.

The person appointed is called your attorney. An attorney can make any decisions in relation to your finances or property so long as it in your best interests. This may also be applied to some family trusts.

A person must be over the age of 18 years of age and have mental capacity to execute an EPA.

Can I make an EPA on behalf of another person if they are no longer able to make decisions for themselves?

No, you can not make an EPA on behalf of another person if they have lost legal capacity. If they are physically incapable but are still capable of making their own decisions in relation to financial issues, an EPA can be executed by that person.

An EPA must be signed in the presence of at least one authorised witness and a second independent witness over the age of 18 years.

What is the difference between an Enduring Power of Attorney and a Power of Attorney?

A Power of Attorney ceases to be of effect when the person giving the power (the donor) loses legal capacity. An Enduring Power of Attorney endures even through that person has lost legal capacity.

What decisions does an EPA allow me to do on behalf of someone?

The EPA permits you to make decisions relating to the donor’s finances and property.

Can I revoke an EPA?

An Enduring Power of Attorney can be revoked by the donor at any time so long as he or she has legal capacity. The State Administrative Tribunal (previously known as the Guardianship & Administration Board) can also make orders to revoke an Enduring Power of Attorney.

Corporate Structure

Discretionary (Family) Trusts

The purpose of a family trust or discretionary trust is to hold assets or to conduct a business and to distribute the income between the beneficiaries. This type of trust allows for streaming income and for more than one beneficiary and has a trustee(s) with the discretion to distribute income and capital to the beneficiaries. There is no fixed interest or entitlement of the trust fund.

Trusts can be used for asset protection purposes, to protect assets against claims by creditors, and to enable to share the income tax amongst more than one family member.

Culshaw Miller Lawyers are well experienced in the drafting of family trusts – please contact us to book in for an initial consultation to discuss your requirements.

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