Death & estate law
Death and Estate Lawyers help you to deal with the death of someone in your family, friend or wider community. They can also help you prepare for the event of your own death and help you feel secure about the future of your loved ones including your children. Advocat covers all Death and Estate Lawyers in Australia so please tell us what you need and we will find the right lawyer for you.Search lawyers
Death & estate law
Death and Estate Lawyers can help you to deal with the death of of someone in your family, friend or wider community. When a person dies, their property and assets are that person’s estate. In most cases, the deceased person has left instructions, called a will, which says what they want to happen to their estate after their death. The people who will inherit the deceased person’s property and assets are beneficiaries. The property and assets that a beneficiary receives is a bequest, a legacy, or an inheritance. Most wills name an executor whose role it is to administer the will, sometimes the executor is a lawyer but not always; in that case the executor may need the assistance of a lawyer to administrate the will.
Death and Estate lawyers also help you to prepare for your death and help you feel secure about the future of your loved ones, they can do this by making a will with you, creating trusts for your children and making sure your wishes are followed after your death.
Death and Estate Lawyers also cover things like power of attorney, health directives, and superannuation.
Frequently asked questions - wills, estates & power of attorney
WHAT IS A WILL?
A will is a legal document which sets out who will receive your property and possessions when you die.
HOW DO I MAKE A VALID WILL?
At least two witnesses are required
You must sign your Will in front of two or more witnesses. The witnesses must also sign the Will either when you are present, or remotely using an audio visual link. This means that the witness does not need to be physically present to witness a signature as long as: one witness is a lawyer or justice of the peace, they can see the Will-maker sign the Will, all sign on the same day, the witness includes a statement that all of the requirements have been met.You must have the mental capacity
To make a valid Will you must also have testamentary capacity. This means that you are not suffering from a disorder of the mind or sane delusion.
The test for testamentary capacity is that you must know and understand: what a Will is – the nature and the effect it has. Approximately what you have to leave in a Will – you don’t need to know the exact value. Any reasonable claims that may be made against your property, for example, a claim by someone who is financially dependent on you.Avoiding a challenge by getting an affidavit
If there is something unusual about the signing of the Will, you can get an affidavit to prevent possible problems or challenges later. For example, you could get a doctor to assess your capacity and sign an affidavit about your capacity at the time you made your Will. An affidavit should state that you are of sound mind and you understood what you were doing when you signed the document. This may prevent a later challenge to the Will. It’s a good idea to make sure the doctor is experienced in making these assessments. It is advisable for the doctor to witness the Will being signed.Marriage and divorce
Marriage and divorce affect the validity of a Will. In the case of either occurrence it is a good idea to review and / or revise your Will.
WHAT IS THE ROLE OF AN EXECUTOR OF A WILL?
An executor is a person (or sometimes more than one person) named in a Will to carry out the wishes of the Will-maker after their death. Often lawyers or specialist trustee companies are named as executors.
- collect all the assets and have them valued, if needed
- find out what debts are owed and pay them from the money made by selling the assets
- arrange tax returns
- claim life insurance
- arrange the funeral
- apply for a grant of probate (they must be over 18 when they apply)
- distribute the estate according to the Will
- take or defend legal action on behalf of the estate.
Executors often need to hire a lawyer to assist them with some of this. The cost of the lawyer comes out of the estate.
HOW DO I DISPUTE OR CHALLENGE A WILL OR ESTATE?
Should you ever want to contest a will, it’s important to have a legal representative who understands both the legal aspects and the strong emotions that often come with these situations.
No one likes to feel wronged. The first step is to contact an estate dispute lawyer who will work with you to reduce the stress and complexities of contesting a will, while building your case to assist you to achieve a favourable outcome.
WHAT IS POWER OF ATTORNEY?
At some time in your life you may be faced with an event – such as an accident or illness – that might take away your capacity to make your own decisions about things like:
- where you live
- how you spend your money
- what support services you may need
If you don’t have a power of attorney you may not be able to choose who should make decisions on your behalf and it could lead to conflict over who should take charge of the decision-making process if you are unable to do this yourself.
WHY SHOULD I GET A POWER OF ATTORNEY?
A power of attorney gives you choice and control over who makes decisions for you when you are no longer able to do so. This could be because you lose the legal capacity to make decisions, or because you are travelling overseas and need someone to make decisions for you while you are away.There are three types of powers:
- general non-enduring powers of attorney
- supportive powers of attorney (for help with decisions)
- general enduring powers of attorney (for financial, legal and personal decisions).
- The non-enduring power and the supportive powers of attorney documents continue until you either revoke (cancel) the power or you lose legal capacity to make particular decisions.
- An ‘enduring’ power of attorney means that your power of attorney continues when you are unable to make decisions on your own.
- The Office of the Public Advocate has information and resources including downloadable forms to help you make a power of attorney.
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