Wills & estate FAQ
Estate planning can be complicated and sometimes confusing, and numerous questions will arise during the process. That is why we have collated these Wills and estate planning FAQ that our Wills and estate lawyers get asked regularly.
If you cannot find an answer to your question, you can speak to the team at Owen Hodge for estate planning help.
1. What is a Will?
A Will is a document detailing how a person’s property is to be distributed on death. A Will also appoints someone who will look after the administration of the terms of the Will.
2. Do I need to make a Will?
It is advisable to make a Will, especially if you have a family or other dependants. There are numerous benefits to making a Will, which include:
- Being able to direct how your property is distributed, including gifts to:
- Friends and family
- Charities
- Other persons
- Avoid additional expense, difficulty, delay and possible anguish in relation to winding up your estate
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3. Can I make my own Will?
Although a Will does not need to be drawn up by a lawyer, the law concerning Wills and estates has many pitfalls and it is highly desirable to obtain legal advice, particularly with regard to who might be entitled to challenge your Will.
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4. How do I make sure my wishes are carried out?
When making your Will, you should appoint an executor: the person who will handle your affairs after you die. You can name more than one executor and you can choose anyone to be the executor.
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5. What happens if I die without a Will?
If a person dies without having made a Will, that person is said to have died intestate and that person’s property is distributed according to a legislative formula, regardless of what the property owner’s wishes might be.
In cases of intestacy, the next of kin are required to take the appropriate action for the estate to be administered, which in most cases will require an application to the Supreme Court for Letters of Administration.
6. Can I leave my assets to anyone I like?
Yes, as long as you make proper provision for your spouse and children (including ex-nuptial children); otherwise, they could challenge your Will.
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7. Can I change a Will?
You should alter your Will if your circumstances change in any way. There are three ways of changing your Will:
- By making a codicil (a separate document in which you make a minor amendments)
- By revoking the Will it or cancelling it
- By revocation and re-publication of an earlier Will
Wills should be regularly reviewed to ensure that they reflect the current wishes of the maker. It is recommended that Wills be periodically reviewed every 5 years or upon the happening of a significant event in the person’s life for example marriage and death of a beneficiary or executor.
8. How can a solicitor help me?
At Owen Hodge Lawyers, we can:
- Advise you on the adequate provision for your spouse and children
- And whether or not they may have a possible claim against your estate
- Help you with capital gains tax and explain the effects of different types of ownership of property
- Make sure your wishes are correctly documented
- Make sure your Will is properly drawn, signed and witnessed
- Keep your new Will in safe custody
- Explain and answer any other Wills and estate planning FAQ
9. What is a power of attorney?
It is a legal document that appoints a person, the attorney, to act on behalf of another person, the principal, with regards to managing that person’s property. This is an ordinary power of attorney, which ceases to have effect if the principal loses the capability to make financial decisions.
10. What is an enduring power of attorney?
Unlike an ordinary power of attorney, the enduring power of attorney gives the attorney the power to act on your behalf even if you become mentally or physically incapable of making financial decisions.
11. What are the benefits of a power of attorney?
- A power of attorney is particularly useful if you are going overseas or if you require hospitalisation.
- It allows someone you trust to act on your behalf in your absence.
- You can give a person control of all your business affairs by giving the authority to that person to act on your behalf and to do anything that you may lawfully do.
12. Do my attorneys have to sign?
The enduring power of attorney is only effective once the attorney has accepted the appointment. A statement of acceptance in the appropriate form needs to be signed by the attorney.
13. Do I need a lawyer to make an enduring power of attorney?
An enduring power of attorney must be witnessed by a prescribed person. A lawyer is a prescribed person.
14. Can I cancel a power of attorney?
You can cancel your power of attorney at any time as long as you are mentally capable. If you wish to stop a power of attorney you should sign a document called a “Revocation of Power of Attorney”.
15. What is estate planning?
An estate plan involves a number of legal documents that detail how you want to be looked after if something happens to you (i.e. if you become incapacitated later in life). It also outlines how your estate and assets will be protected while you are alive and then distributed after your death.
16. What documents are included in estate planning?
The following can be included in an estate plan:
- Last Will and Testament
- Substitute decision-maker
- Advanced Care Directives
- An enduring power of attorney
- Trusts, including testamentary trusts
17. Can I do my own estate planning?
Similar to the estate planning FAQ about making your own Will, you can organise your own estate planning. However, since the estate planning process can be very complicated, it’s best to speak to an estate planning lawyer.
18. What is the difference between a Will and estate planning?
A Will is a legal document that outlines how your assets will be distributed after your death, whereas ‘estate planning’ is a broader term and a longer process.
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If you have additional questions that we did not answer in our Wills and estate planning FAQ, please contact the lawyers at Owen Hodge.