You should ensure that you have up-to-date estate planning documents in place (Will, Enduring Power of Attorney and Advance Health Directive) to ensure that your personal wishes regarding your care and your wishes regarding your assets are upheld. It is important to ensure your documents are valid, up to date and that the originals can be found when they are required.
Your Will deals with your assets after you pass away and should specify who you wish to appoint as executor/s of your estate. They have the important role of paying any debts of the estate, collecting in the assets of the estate, and then distributing the net proceeds in accordance with your Will. We can assist your executor/s by providing legal advice and making an application for a Grant of Probate or Letters of Administration is required.
Enduring Power of Attorney & Advance Health Directive:
Your Enduring Power of Attorney (EPOA) and Advance Health Directive (AHD) apply whilst you are still alive, but where you have lost the capacity to made decisions for yourself. Your EPOA allows you to specify a person or people to decisions about personal and/or financial matters on your behalf, such as paying bills for you. Your AHD allows you to specify your wishes in relation to your medical care, such as whether you want to be resuscitated in different scenarios.
Cornerstone Law Offices Estate Planning process:
Our estate planning process involves an initial appointment to run through details of your family, assets, who you want to appoint as your executor/s, and gifts you wish to leave. We will then draft your Will and email it to you to review. Once you are happy with the document, we will arrange an appointment to sign off your estate planning documents. We offer fixed pricing for our estate planning documents. Our aim is to guide you through this process and answer any questions you may have to make it simple to get your personal affairs in order.
Your Will has not lodged anywhere so it is important to let your executor/s know where your latest original Will is held. EPOAs may need to be registered with the Land Titles if your attorney is buying/selling land on your behalf and a registration fee will apply. You should also let close family members know where your AHD is held in the event they need to provide it to a hospital on your behalf and you may wish to provide a copy to your Doctor. We offer a free service of holding your estate planning documents in safe custody to keep your original documents secure.
There are no set time limits as to when you should update your estate planning documents, however, you should regularly review them and update them whenever they no longer reflect your wishes.
Feel free to reach us on 07 3806 4354 or fill in the form below:
Whilst writing your own Will might seem like a cheaper option, it can cause problems and be far more costly for your estate in the long run. Here is the answer for the most asked question “why do I need an Estate Lawyer” or “Estate Lawyer vs Free Will kit”.
There are a number of formal requirements that should be complied with for a Will to be valid, such as being signed in the presence of two witnesses. Suppose your Will is not properly executed in accordance with the legal requirements. In that case, further evidence may need to be obtained to support an application to the Court to obtain a Grant of Probate or Letters of Administration. This can result in delays and increased costs in the administration of your estate. For example, it may be necessary to locate witnesses to provide further evidence regarding the execution of your will.
Complications can also arise if any of the wording in your Free Will is ambiguous. If your intentions are not clearly explained in your Will, gifts may fail. For example, if you leave your car to your friend, but at the time of your death you have more than one car, or that car has been sold, your wishes may become unclear. Problems could also arise if your friend cannot be located, orif he or she has since moved overseas assuch a gift would be costly to transport.Any ambiguity mayrequire an application to be made to the Court. Evidence would then need to be provided in relation to your intention, for the Court to interpret your Will, which would be likely to result in significant legal fees for your estate.
Our experienced Estate Planning lawyers will take the time to run through details of your family situation and assets to try to avoid any issues arising after you pass away. We will discuss details of your assets, as it is important to note that not all property will automatically form part of your estate. It is important to consider what will happen to jointly owned property and your superannuation benefits. Any claims against your estate or issues that need to be rectified due to incorrect wording or execution of your Will can become very costly and delay the administration of your estate.
Lawyers will discuss your individual needs and tailor clauses to ensure your Will reflects your wishes. You may have considered how you wish to divide your estate, but what if one of the beneficiaries named passes away before you? If you don’t have alternate provisions stated in your Will, it may be that part of your estate would not be covered, known as a partial intestacy, in which case the intestacy provisions will apply and your estate may be distributed to family members who you do not wish to benefit.
If you would like to make an appointment to discuss updating your estate planning documents call us on 07 3806 4354.We can arrange phone and internet appointments if required during this time. We are currently providing a free Will review, claim your offer below.
Fill in the form to claim gift voucher.
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Here is how your advance health directive and Medical Care.
Getting older is a part of life that no-one can avoid, so it’s worth thinking about the medical treatment you wish to receive if you lose the capacity to make such a choice for yourself.
Who can make decisions regarding your health care?
If you have the capacity, your Doctor should discuss treatment options with you, but what happens if you or someone you care for suffers a life-limiting illness, such as dementia?
In Queensland, an Advance Health Directive can be put in place to specify your wishes in relation to your future medical care. This document provides different scenarios in relation to your level of health. It allows you to select whether you do or do not want certain treatments, such as resuscitation, ventilationand artificial feeding. You can also state any other wishes you have regarding your day-to-daycare, such as whether you wantmedication when your quality of life declines.
Requirements of an Advance Health Directive
The Advance Health Directive must be:
A written document;
Signed by the person making the document;
Signed and dated by an eligible witness; and
Signed and dated by a Doctor.
Once made, you should provide your Doctor and close family members with a copy of the completed document. If you are admitted to the hospital, a copy of the Advance Health Directive should also be provided to be held with your records.
Advance Health Directives do not have a time limit; however, you should review the document regularly and update it if your wishes change. You can revoke or amend your Advance Health Directiveat any time while you have the capacity to understand the nature and effect of the document.
Preparing Will online
Where someone has little or no prospect of a cure, palliative care aims to optimise the quality of life. Changes in your independence and mobility can be challenging, butplanning for the future with your medical and legal advisors can help ease the worry.Planning can allow you to live as well as possible within the limitation ofillness, soit’s important to think about the choices that matter to you.
Obtaining further information about end of life concerns can help with making decisions. People have their own beliefs and values about death and dying, and we see the importance of those values being upheld.
Letting your close family members and Doctors know your wishes can make such difficult decisions a little easier by planning and getting your estate planning documents in place before it is too late.
We can assist with arranging visits to homes, aged care facilities or hospitals if someone is unable to attend at our office for an appointment to make an Advance Health Directive, Enduring Power of Attorney or to update your Will. We can also arrange appointments by telephone or video.
If you are caring for someone with a life-limiting illness, some organisations may be able to help with palliative care support and respite care.Please visit the following links for further information –www.carergateway.gov.au; www.palassist.org.au .
Fill in the form to talk to our Estate Planning lawyers regarding your Advance Health Directive, EPOA and Will.
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There are generally two ways of disputing or contesting a Will:
Questioning the validity of the Will; or
Proving that there has been an inadequate provision for you under the Will.
QUESTIONING THE VALIDITY OF THE WILL
A person may dispute the validity of a Will, by proving that the Will is not the last valid Will of the deceased. Some grounds to dispute the validity of the Will are:
The deceased revoked the Will or made a later Will.
The deceased married after making the Will and the Will was not made in contemplation of the marriage.
The deceased lacked the testamentary capacity to make the Will as at the date of the Will. For example: the deceased had an intellectual or mental disability; the deceased did not understand the contents or nature of the document they were signing; the deceased was coerced (compelled by force), unduly influenced or was under duress to sign or make the Will.
The Will was not executed correctly. For example, the Will has not been signed by the deceased and witnesses on every page or a witness is also a beneficiary under the estate, or parts of the Will were amended after the Will was executed by the deceased.
Generally, the Court decides the validity of the Will by granting or refusing Probate of the Will, or by revoking an existing Grant of Probate. Once a Grant of Probate is obtained, an executor may proceed to distribute the estate in accordance with the terms of the Will and carry out the deceased’s instructions under the Will.
For this reason, It is important, if you doubt the validity of the Will, you must act quickly and let the Executor know as soon as possible and before the Grant of Probate is obtained.
While not strictly contesting the validity of the Will, it is possible to challenge a Will by questioning the construction where the meaning is unclear or ambiguous. For example, if the deceased left a house to their grandchild Joe and the deceased has two grandchildren with the name Joe. The Executor or beneficiaries may apply to the Court to have the Will interpreted by considering rules of construction and other evidence which shows the real intention of the deceased.
INADEQUATE PROVISIONS/FAMILY PROVISION
If you have been left out of the Will or you feel you have not inherited enough under the Will and are entitled to more from the estate.
Generally, a person can leave their possessions and money to anyone they choose. However, you may be able to bring a Court action for a provision from the estate of the deceased even though the deceased did not provide you with anything or little in their Will.
Who is Eligible?
In order to contest a Will, you must be an eligible person. An eligible person is someone who falls within one of the following categories:
The spouse at the date of death.
A De Facto spouse at the date of death.
A Child of the deceased, including a step-child or an adopted child.
A former spouse.
A person with whom the deceased was living in a close personal relationship at the date of death.
A person who was wholly or partly dependent on the deceased; i.e., relied financially upon the deceased.
Grounds to Claim
An eligible person who wishes to challenge a Will upon the basis that they have not received enough of inheritance must demonstrate that the provision provided for under the Will was inadequate for their proper “maintenance and support” and that they will suffer hardship as a result of the deceased’s decision to give their assets to others.
The Court considers many factors when determining a family provision application, for example:
The applicant’s financial position with reference to their income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs;
Whether any other person is liable to support the applicant;
Whether the applicant is bound to support any other persons;
The applicant’s health;
The deceased’s influence on the applicant’s lifestyle;
The age of the applicant;
The size and nature of the deceased’s estate;
The strength of any competing claims to the deceased’s estate;
The relationship between the deceased and other persons who might have a claim to a share of the deceased’s estate;
The relationship between the deceased and the applicant;
Any contribution made by the applicant or a beneficiary to the build-up of the deceased’s estate;
Any conduct on the part of the applicant which might disentitle them to order for provision (serious criminal behaviour, estrangement, drug or alcohol abuse, etc); and
Any other matter which the Court considers relevant.
In Queensland, there are two important time limits that apply for contesting a Will.
If you want to contest/dispute a Will in Queensland, you must first give notice to the Executor that you intend to contest the Will. This notice should be in writing and must be given within six months of the date of death. If the Executor does not receive notice of a potential claim after six months has passed, the Executor can distribute the estate and there may be no estate assets left for you to make a claim against.
The second time limit which applies to family provision applications in Queensland requires you to file an application in the Courtwithin nine months of the date of the deceased’s death.
If you miss the second time limit, you can make an application out of time, however, it is at the discretion of the Court whether to allow you to make the application. In deciding whether to allow an “out of time” application, the Court will consider a range of factors, including:
The length of the delay;
The reason for the delay;
Whether the estate has been distributed; and
Your conduct relating to the estate; for example, have you followed the correct process, have you ignored correspondence from the Executor or the Executor’s legal representative, have you tried to resolve the matter directly with the Executor? etc.
WHO PAYS THE COSTS OF CONTESTING/ DISPUTING A WILL?
In Queensland, costs are at the discretion of the Court, but usually, they follow the event. This means that the successful party in legal proceedings will usually have some of their legal costs paid by the other party.
This means that:
If you are successful and the Judge makes an order in favour of you, the estate will usually pay your standard legal costs; and
If you are unsuccessful and the Judge makes no order in favour of you, the Judge may order you to pay the Executor’s costs of defending the proceedings.
Need advise in contesting or disputing a Will? Fill in the form to talk to our Estate Planning lawyers.
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The passing of a loved one is a difficult time for your family. Here is everything you need to know from death to execution of a Will.
Was there a valid Will?
When someone passes away, their Will comes into effect to appoint someone as the Executor (also known as Legal Personal Representative) of their estate to finalise their personal affairs and distribute their assets in accordance with their Will.
We will obtain details of the assets of the estate and discuss whether a Grant of Probate needs to be obtained from the Supreme Court. Some asset holders may also require a grant to be obtained before funds will be released (for example, banks have a threshold amount where they will require probate, generally around $50,000).
What is a Grant of Probate?
A Grant of Probate is the Supreme Court’s recognition that a Will is legally valid and provides the Executor with authority to distribute the assets of the estate following the Will. This formal process involves advertising, then making an application with supporting documents and explaining any issues regarding the Will (for example, if the Will was not correctly executed, any discrepancies such as incorrect spelling of names or issues regarding the capacity of the deceased).
Where happens if there is no Will?
Where there is no valid Will, or the Will does not appoint an Executor, an application may need to be made to the Supreme Court for a grant of Letters of Administration to appoint someone as the personal representative of the estate. The Rules of Intestacy will apply as to how their estate will be divided between family members.
The process of administering an estate
Once a Grant has been obtained, if required, the various asset holders can be contacted in relation to collecting funds and property can be sold or transferred as required. The personal representative must also ensure that any funeral accounts, legal fees and debts of the estate are paid and any arrangements made for any required tax returns to be lodged.
The relevant legislation provides that anyone who wishes to make a claim against an estate should do so within 6 months of the date of death. Family provision claims may arise where someone who was not sufficiently provided for under the Will can make a claim. Legal advice should be sought in relation to any notice received of an intention to make a claim.
Once 6 months have passed and if no notice of an intention to claim is received, the estate can then be finalised and distributed to the beneficiaries. In the case of simple estates, assets may be distributed earlier at the discretion of the personal representative depending on the circumstances of the estate.
Should any disputes between beneficiaries or claims against the estate arise, this will complicate and delay the administration of the estate. We recommend making an appointment to discuss any matters regarding the administration of an estate with one of our solicitors to ensure you are aware of your rights and obligations and that the wishes of your loved one are carried out.
We are providing a free Will review or a consultation voucher towards Estate Planning. Claim it by filling in the form below.
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Most people find the process of writing a Will a difficult one. It’s a time when you have to think about those things you’d rather not; what’s going to happen after you pass away, where will all your belongings go, who will look after your family, how will they cope? It’s a stressful time. Now, imagine writing a Will in the midst of a pandemic such as COVID-19.
With lockdowns, social distancing, and mandatory separations, people are even more concerned about their safety, their livelihood and their family. Many older people are concerned they may get sick. If the worst were to happen, with no Will in place, they are even more scared as they have no way to protect their family legally.
Unfortunately, people who are at risk, such as the elderly, Are the ones who are the most difficult to have contact with due to self-isolation or aged care homes’ restrictions.
We are trying to make sure that amid this pandemic we can offer some form of relief by helping people to finalise their Wills. It’s not much, but it does relieve stress and lift a weight off people who are concerned they may be at risk of getting sick.
One of our solicitors, Tamsyn Borton, recently attended an Aged Care facility in the Northern suburbs of Brisbane to help one of our elderly client’s finalise her Will. The day she attended to take her instructions was the last day before the lockdown, and she describes her experience on how she visited her client during the lockdown:
“I sanitised and had my temperature taken before I sat with her for an hour, taking her instructions, and then left. After then the facility was put on lockdown – only staff were allowed to enter and leave. Cornerstone Law Offices has been liaising with the Queensland Law Society to see how we can adapt in this pandemic and arrange signing of Wills without making physical contact with the clients. We offered the Aged Care facility options such as:
1. Having staff witness the client’s signature; 2. Having the staff hold a video link up to me, as the solicitor, so I could view and record the client signing the document; or 3. Arranging for me to be allowed back in to witness the Will as she signed it.
The Will was drafted within a week. Within two weeks, I reattended the Aged Care Facility, with my client’s friend to act as her second witness, so we could get her Will signed.
The Aged Care facility was very accommodating, having a staff member bring my client out, set her up on one side of the room, and then walk the documents between the client, myself and the other witness.
We were able to have a Will drafted, signed and witnessed for a client who was nervous about the pandemic situation and therefore wanted to get her Will done. It is one less thing she now has to worry about”.
If you want to have your Will drafted but are unsure about how the process will take place, give us a call. We are doing initial consultations via telephone and video link and trying to ensure all our clients are represented well and kept safe. We are here to help.
Claim your Will gift voucher here:
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In your lifetime, it is essential to put in place documents such as an Enduring Power of Attorney (EPOA) to appoint someone to make day to day decisions on your behalf should you become unable to do so.
You should also consider making an Advance Health Directive specifying your future medical care, such as whether you would like to receive life-sustaining treatment in different circumstances.
You should also ensure that you have a valid and up-to-date Will in place. Your Will should state who you wish to act as your Executor and how your assets are going to be distributed.
How can Cornerstone Law Offices help you in getting your Enduring Power Of Attorney, Advance Health Directive and a Will during COVID-19?
During the current COVID-19 pandemic, we can arrange appointments by telephone, video chat or face to face appointments. Where clients are unable to attend at our office, we can also arrange a home visit where required.
For many clients, it is convenient to have an initial appointment by phone or video chat. Once prepared, we will email your draft Will for you to review and any amendments requested will be done. We can book in an appointment to sign your estate planning documents at our office, or we can post or email the final documents to you to arrange for them to be formally signed. If you wish to attend at our office, we have made adjustments to our office to cater for practising social distancing measures.
What if you are in a restricted visitation area (Aged care facility)?
We will also work with you to assist if there are visiting restrictions currently in place, for example, at aged care facilities. There are some further options such as video link via Zoom or Teams for witnessing which may be used during the COVID-19 pandemic if general witnessing requirements are not in place.
In a situation where the formal witnessing requirements are not met, we will provide a checklist for signing procedure and advise you regarding supporting evidence to be obtained.
If you have any queries regarding updating estate planning documents for yourself or a loved one, please do not hesitate in contacting our office on 07 3806 4354 to discuss the options available during this time.
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Read about what will happen to your assets if you die without a Will.
If you die without a will, you are said to have passed away ‘intestate’. This means your estate (your assets) will be administered and distributed according to Queensland’s laws of intestacy.
Having a will allows you to legally protect your spouse, children, other family members and your assets. It also allows you to appoint an executor to administer your estate and to have control over how you want your estate to be distributed.
What is an asset?
An asset is anything you own that has a monetary value. An asset can be the home you live in, other properties you own, motor vehicles, investments, art collections, personal belongings, cash, bank accounts balance, superannuation, shares, and the list can go on. Your estate lawyer will be able to help you identify your assets during your estate planning discussion.
What makes a will current and valid?
A will document the wishes you want to come into effect when you die. A valid will is your last written wish which is witnessed by two people while you have full mental capacity. All three parties need to be physically present to sign and witness the document. Your lawyers can also witness the documents. The costs of administering an estate where there is a current and valid will can be significantly less than where there is no will, or where the will is not valid.
If you pass away intestate, an ‘eligible person’ must apply to the Court for a grant ofLetters of Administration enabling them to become the legal representative of your estate. This grant will appoint someone as the administrator of your estate so they can deal with your assets (i.e. bank accounts etc) to finalise your estate. The administrator will be responsible for paying off debts and ensuring the estate is divided appropriately in accordance with the intestacy rules.
In order of priority, the following people are eligible to apply to the Court to be appointed as the administrator of your estate if you die without a will:
surviving spouse (including a de facto partner)
grandchildren or great-grandchildren
brothers and sisters
nephews and nieces
uncles and aunts
anyone else the court may appoint.
How will my assets be distributed?
Part 3 of the Succession Act 1981 (Qld) sets out the entitlements of the next of kin of an intestate person. How an intestate estate is distributed depends on the circumstances of the deceased.
If you pass away intestate, your estate will be distributed to the closest next of kin, first being your spouse (including a de facto partner) and then your children.
If at the time of passing you had a spouse, with no children, then the whole estate will go to the spouse.
If you had a spouse, and have children, then your spouse will receive the first $150,000 of the estate and all household goods. The remainder will then be split equally between the spouse and your children.
If you are single and have children, the children will receive the balance of the estate in equal shares.
If you have neither a spouse nor children, then the estate will be distributed to the following people in the following order:
siblings, nephews and nieces
uncles, aunts and first cousins
Cornerstone Law Offices can help you with all of your needs in regards to wills & estate planning and estate administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).
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Wills and estate administration is a highly litigated area of law requiring solicitors to be extremely vigilant. A solicitor failing to ask a relatively mundane question can lead to terrible consequences for a client and beneficiaries of a will such as a beneficiary not acquiring their beneficial interest or ending up in costly litigation.
The law is always changing
Estate laws are constantly changing because of new court decisions and amendments to old provisions. This area of law intersects with multiple other areas of law. For example, an ex-spouse may have a claim to the testator’s estate pursuant to family laws; a beneficiary may not be allowed to acquire corporate interests without having a shareholder vote pursuant to corporation laws, or a beneficiary may end up having to record his/her inheritance as an income for the year causing him/her to pay more capital gains tax pursuant to tax laws.
What to expect from your solicitor
When taking instruction, a solicitor should:
make detailed notes
determine and review any previous wills
determine the assets/liabilities/creditors
determine locations, identities and any aliases of appointers, trustees and beneficiaries
investigate the client’s capacity and level of urgency to make a will
verify the types of title ownership over assets
advise the client on the rule of ademption and pecuniary legacies
advise the client to speak to an accountant in relation to tax consequences
provide advice on the best and worst outcomes
ask probing questions to investigate the client’s family structure, make sure the estate is solvent, funeral arrangements, superannuation, life insurance, discretionary trusts, companies, enduring Power of Attorney, Advance Health Directives
advise on minimising risks from potential people having a claim to their estate regardless of being a beneficiary named in the will.
Solicitors are officers of the Court As an officer of the Court, solicitors have a duty to collect and record all evidence that is relevant, not only evidence which may support the validity of the will, but also evidence that may cast doubt upon it. Solicitors must strive to remove ambiguity from wills and record all instructions and evidence. Where a person lacks testamentary capacity, s.21 Succession Act 1981 (Qld) may allow the Court to authorise a will to be made, altered or revoked on behalf of the incapacitated person.
Cornerstone Law Offices can help you with all yours and your loved one’s Wills & Estate Planning and Estate Administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).
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Does your Will affect your assets? It depends on whether or not you have a valid Will. There are technical requirements for the preparation and signing of a Will for it to be valid.
To ensure that your estate, your hard-earned assets, is distributed according to YOUR wishes rather than a legislative formula being used to determine who gets what, you should obtain legal advice and make a Will.
The costs to your estate if your Will is challenged in court, or has to be proven as your last Will, or if you die without a Will, the costs of obtaining letters of administration, if required, to distribute your estate, will be substantially greater than the cost of making a Will. It also prevents confusion, conflict, and stress in the future for your family.
“I don’t need a Will because I am too young, I don’t own a house or a car” – Wrong!!
The value of your estate may be worth more than you think. You may have superannuation, receive an inheritance, or in the event of accidental death, the proceeds from an insurance payout will need to be distributed.
Before you pack your bags for local, interstate, or overseas travel during holidays, make a Will, then relax, knowing that your loved ones are taken care of.
If you have a Will, review it regularly, especially when significant events occur such as the purchase or sale of an asset, separation, remarriage, the birth of a child. Certain life events may also render your Will invalid.
Contact Cornerstone Law Offices for solid legal solutions in Wills & Estates, all aspects of Family Law, Conveyancing and Debt Recovery.
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