Life can be unpredictable and planning for the future helps protect the people and things that matter most. Whether you are starting fresh or reviewing your existing plans, this guide covers three essential legal documents everyone should consider:
What is a Will and why do you need one?
A will is a legal document that outlines how you want your assets and affairs handled after you pass away. Without a valid will, your estate is distributed according to the law in a prescriptive way where there is no nuance, or consideration of wishes or family dynamic, which may not reflect your wishes.
Why having a will matters:
When should you make or update your will?
You should immediately review (or re-do) your will when any of these events occur:
Planning ahead: enduring powers of attorney and/or guardianship
Estate planning isn't just about what happens when you die. It's also about protecting yourself while you're alive, in case something unexpected affects your ability to make decisions.
Enduring Power of Attorney (EPA)
This allows you to appoint someone to make financial and legal decisions on your behalf, such as managing bank accounts, paying bills or handling property. It can take effect immediately or only if you lose capacity, as determined by the State Administrative Tribunal.
Enduring Power of Guardianship (EPG)
This allows someone to make personal, medical, and lifestyle decisions for you during any period where you have lost capacity, including health care choices, accommodation decisions and personal welfare matters.
Who can you appoint?
You can have 1-2 attorneys (and substitutes), and there isn't a cap on guardians - however more than 2 is not recommended. Attorneys can act joint and severally. Guardians cannot.
What is probate and when do you need it?
Probate is a grant from the supreme court confirming the authority of the executor named in a will to manage the estate. It allows the executor to collect and distribute the deceased's assets.
When is probate required?
Typically, when the estate includes property, shares, or large sums of money, or when a financial institution requires it before releasing funds.
What if there is no will?
If someone dies without a will, this is called dying intestate. In this case, the estate is divided according to state law, not personal wishes. Usually, a family member will need to apply for letters of administration to manage the estate.
But what if there's no family? If no eligible relatives can be found, the estate doesn't just sit unclaimed, it will eventually pass to the State or Territory Government.
Letters of Administration with Will Annexed
What if there is a will, but no executor? In this situation, letters of administration "with will annexed" can be applied for. This covers cases where there is a will, but no executor is named, or the named executor is unable or unwilling to act.
Executor responsibilities
An executor is the person named in a will to make sure the estate is handled properly. They apply for probate, pay debts and taxes, distribute assets, and sometimes hold money or property in trust until a beneficiary is old enough or able to manage it.
Need help with wills, powers of attorney or guardianship, or probate? Get in touch with Fortuna Legal, we're here to help protect what matters most.
heath@fortunaadvisors.com.au
9240 4211