Wills and Power of Attorney
Why pay a lawyer to prepare your will when you can buy a legal will kit for a fraction of the price? It’s a question we’re often asked.
Sure, there’s nothing to stop you from buying a will kit and filling in the blanks, but there are a few things to consider before you head down that path. Especially because, if you ask any wills lawyer, most wills have at least a few hidden issues that make them less straightforward than they initially seemed.
Get the right advice
Preparing a will that properly sets out your testamentary wishes is not a simple task. If it is not done properly, there are issues that can really cost your estate after you’re gone.
For example, if you have three children but decide to leave your estate to only two of them, the third child can make a claim for part of your estate. If there is a legal dispute between that child and your other two children, all the legal fees will be paid for by your estate.
That means that when the dispute is finally settled or determined by a court, your estate has been eroded and your loved ones will inherit less.
But if you get good legal advice when preparing your will, you can minimise or avoid this risk.
Signing a will
Most people don’t realise that a will has to be signed and witnessed (executed) in a very specific way. If it is not, probate may not be granted because the Court will not be able to decide with certainty that the will reflects their intentions.
What is probate?
Probate is the process that all wills must go through after a person dies.
Probate is the process of proving the will. That is, proving that the will was properly made and executed in accordance with the will-maker's (testator's) wishes. When probate is granted, the Court is declaring that the will reflects the testator's intentions and it gives permission to the executor to deal with the estate according to the terms of the will. The executor is the person appointed by the will to be the legal representative of the testator's estate after the testator has died.
If there is a problem in getting probate because the will has not been properly executed, time and money needs to be spent to prove that the will reflects the testator’s intentions. Again, the legal fees will be paid for by the estate which will mean there is ultimately less for the beneficiaries to inherit.
If the Court refuses to grant probate, the person may be declared intestate, meaning they have died without a will. A different set of rules will then be used to divide up the estate and the person’s intentions and wishes may be ignored.
We can help
Websters Lawyers can assist you in the preparation of a will that takes into account all of your personal circumstances.
We have lawyers who are wills specialists and well-versed in other legal areas. Quite often, other legal areas come into play when making a will and it’s important that your lawyer is familiar with all the potential issues.
For example, there may be:
- Parenting issues.
- A new spouse or domestic partner, along with their children.
- A separation or divorce, which requires a new will.
- Superannuation, which requires special advice.
The more consideration that is given to all of these things, the more water-tight your will is likely to be.
Powers of Attorney
Websters Lawyers can also provide advice about Powers of Attorney (POA) and draft one on your behalf.
A POA is a legal document that allows you to appoint a trusted person to deal with your financial affairs in the event that you are unable to manage them yourself.
This may happen if you are overseas, severely ill or incapacitated in some way, for example in a coma after a car accident or suffering a brain injury after a stroke.
Your POA only becomes active if you are unable to act on your own behalf.
A POA does not deal with medical decisions or decisions to be made about the ongoing care of a person. An Advance Care Directive deals with these issues.
Quite often, people choose to use our Personal Estate Planning Package so that they can prepare their POAs and Advance Care Directives at the same time as they prepare their wills. We offer a competitive fee for this service.
For further information, see our Will, Power of Attorney & Advance Care Directive Brochure and our Probate and Letters of Administration Brochure.
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