Estate planning generally requires more than preparing a valid Will. Effective estate planning uses strategies to protect your hard-earned assets and to create security for your family. You should also consider ways to ensure your financial, medical, lifestyle and legal affairs can be managed by somebody you trust in the event of accidents or illness. Estate plans should be reviewed regularly, and especially when major changes occur such as:
- marriage, divorce or separation;
- the addition of children to the family;
- a significant change to the family’s assets or liabilities;
- a change in working conditions such as the buying or selling of a business or self-employment;
- changes to superannuation, insurance policies or taxation levels; and
- the establishment of discretionary trust
Making a Valid Will
There are numerous formalities that must be followed for a Will to be valid. If those formalities are not satisfied, it could cause your estate to incur significant legal costs.
A Will enables you to nominate executor(s), who will fulfill the terms of your Will, and to nominate the beneficiaries to inherit your assets. A Will can be simple or complex, depending on your circumstances. Your Will can also specify your wishes in relation to the appointment of guardians for minor children and provide directions for your funeral.
If you die without a valid Will, you will be deemed ‘intestate’. If this occurs your South Australian assets will be distributed in accordance with the default provisions of the Administration and Probate Act 1919 (SA). If this occurs, your loved ones may miss out on receiving an inheritance from you and they will need to seek orders from the Supreme Court of South Australia to resolve that lack of provision, which is costly financially and emotionally.
Having a valid Will gives you peace of mind that you have made your testamentary wishes clear.
Powers of Attorney / Enduring Powers of Attorney
A Power of Attorney is a legal document that you can make appointing a trusted person to manage your financial affairs when you are not able to and can be subject to certain conditions as dictated by you. Powers of Attorney are useful if you are planning to go overseas, suffer from poor health, or reach a stage in your life when you need extra help to manage your affairs. Your attorney can pay your bills, do your banking, and even enter into legal agreements on your behalf.
Making an Enduring Power of Attorney, enables you to nominate your attorney and have them act on your behalf, even if you subsequently lose legal capacity to make decisions in your own right.
We can explain the benefits of making a power of attorney and recommend the appropriate documentation for your particular circumstances.
Executors applying for Probate
An executor may need to apply for a Grant of Probate through the Supreme Court of South Australia before administering an estate. The Grant of Probate ‘proves’ the Will of the deceased person and authorises the executor(s) to finalise the estate according to the Will. The size and type of the assets that you have will determine whether Probate is required. For example, banks and other Authorised Deposit Taking Institutions may require an executor to obtain a Grant of Probate before releasing funds. Probate is also required to transfer real estate to the beneficiaries.
Challenging a Will’s Validity
Sometimes there are situations that might cause you to question the circumstances around the making of a Will. Such circumstances may exist where the maker of the Will has an established age-related cognitive impairment and/or has disinherited one family member to the substantial benefit of another and/or has one of the witnesses to the Will specified as a beneficiary in the Will.
You can also challenge a Will if you believe that the Will is a forgery, or if you believe that undue influence was exerted upon the deceased, or if there was fraud involved.
There may be good reason to preserve the estate by filing a Probate Caveat in the Supreme Court of South Australia and prevent the executor from obtaining a Grant of Probate until the validity of the Will is determined.
Legal disputes of this nature are notoriously complex. We recommend that you contact us to speak to a solicitor from our estates team about your rights, options and entitlements if you feel that a Will has been executed in suspicious circumstances.
How do I make a claim?
If it is worth proceeding, we will contact the executors and notify them of your potential claim. We will then gather evidence, prepare documents and make an offer to the executors and beneficiaries. Many claims are settled through negotiation.
If the matter is not resolved, then we can assist you in lodging legal proceedings and advancing the matter to a Settlement Conference or Mediation. Failing all else, we can act for you in a Trial hearing, wherein the evidence will be presented and the judicial officer, a Justice of the Supreme Court of South Australia, will make a decision.
Inheritance Family Provision Claims
If you have been excluded from a family member’s Will or have not received adequate provision from their estate, you may be able to make a claim.
To be successful, a claimant must show that the deceased person failed to make adequate provision for the claimant’s proper maintenance, education and advancement in life. The claimant must also persuade the Court that there was a moral obligation on the deceased person to make provision for the claimant.
Who can make an inheritance claim against the Estate?
The legislation varies from State to State. In South Australia, the Inheritance (Family Provision) Act 1972 (SA) provides that an eligible person may include:
- a spouse (wife or husband) of the deceased;
- a former spouse who has been divorced from the deceased;
- a domestic partner which may include persons who are the de-facto or same- sex partner of the deceased;
- a child or grandchild of the deceased;
- a child of a spouse or domestic partner of the deceased person if they were maintained or legally entitled to be maintained by the deceased person immediately before their death;
- the parents of the deceased; and
- brothers and sisters of the deceased.
This is a general guide only, so please contact us to discuss your rights and entitlements.