Estate Planning is not just about having a Will. It involves the review, management and control of your personal, family and business affairs while you are alive and when you pass away. It can be as simple as having a Will, but often involves powers of attorney, enduring guardianships and sometimes more.

A well-considered Estate Plan can cover your current lifestyle needs, your retirement plans, your business arrangements, future critical events such as divorce, health concerns and family disputes as well as ensuring your assets go exactly where you wish them to go.

At Sanford Legal, we ensure your interests are best protected.

What is a Will?
A Will is a legal document which allows you to distribute your assets upon your death in the way you wish them to be distributed. Assets include property such as your home, car, money in the bank. Personal items such as jewellery, furniture, art work, life insurance policies and superannuation policies also form part of your assets.

Making a Will is important regardless of whether or not you have family and/or dependants.

When making a Will a Legal Representative of the Estate is appointed and known as your Executor. The Executor’s function is to ensure that your wishes are carried out as outlined in your Will. You may wish to appoint more than one Executor.

What is an Enduring Power of Attorney?
An Enduring Power of Attorney allows you to appoint an attorney to deal with your financial affairs on your behalf in the event you are unable or incapable of doing so for yourself through illness, disability, loss of mental capacity etc. You may elect to appoint more than one Attorney who will then be free to act individually or jointly.

An Enduring Power of Attorney is one that continues to operate after you have lost mental capacity.

What is an Enduring Guardianship document?
An Enduring Guardianship document allows you to appoint an attorney to deal with lifestyle issues on your behalf in the event you are unable or incapable of doing so for yourself through illness, disability or loss of mental capacity. Lifestyle issues include decisions regarding what medical treatment you receive, what dental procedures you receive or where you live.

In situations where you don’t have an Enduring Guardianship document, the State may appoint an Attorney on your behalf. Having an Enduring Guardianship document in place gives you comfort in knowing who will be making these important decisions for you.

What happens if I don’t make a Will?
If you don’t make a Will the process of distributing your assets becomes much more complicated, time consuming and expensive. The Law sets out a formula stating who is entitled to inherit from a deceased person’s estate if the deceased has not made a Will.

If you do not have a Will you cannot be assured that your assets will be distributed in the way you intended or wished for them to be. Whilst divorce does not revoke a Will, marrying does revoke a Will unless it is made in light of the intended marriage.

Where should I keep my Will?
It is recommended that your Will, Power of Attorney and Enduring Guardianship documents be kept by your Solicitor or in a safe custody box at your bank.
Sanford Legal will gladly hold these documents on your behalf free of charge while a bank may charge an annual fee.
If your Will, Power of Attorney and/or Enduring Guardianship documents are mislaid or lost, it may be assumed that they never existed or that your Will may have been revoked.

You should retain a copy of each of the documents and it is also recommended that you advise your appointed Executor(s) and/or Attorneys as to the location of the original documents together with details of who they should contact in the event any of the documents are required.

Dealing with a deceased estate
When a person dies someone must be appointed to deal with that person’s assets including attending to the payment of their debts. The person appointed to do so will either be appointed by the person’s Will or, if there is no Will, by order of the Supreme Court of NSW.

When a valid Will exists
If a person dies leaving a Will an executor will be named. The named executor will be responsible for applying to the Supreme Court of NSW for a Grant of Probate. The original Will must be attached to the application.

A Grant of Probate is an order made by the Supreme Court confirming the Will has been proved as valid and provides authority to the executor to administer the deceased’s estate and finalise the deceased’s affairs.

Where no Will exists
If a person dies leaving no Will, an Application for Letters of Administration must be made to the Supreme Court of NSW upon which the Court will appoint an administrator to administer the deceased’s estate and finalise the deceased’s affairs. An Administrator appointed may be the spouse of the deceased or a child of the deceased.

Where a Will exists but the appointed Executor has predeceased the Testator
If a person dies leaving a Will but the executor appointed under the Will has died before the person making the Will, an application for Letters of Administration must be made to the Supreme Court of NSW upon which the Court will appoint an administrator to administer the Deceased’s Estate and finalise the Deceased’s affairs.

Steps when dealing with an Estate
Prior to contacting a Solicitor, whether there is a Will or not, you should compile a list of assets of the Deceased which will include:

• Real Estate
• Money in bank accounts
• Shares and/or debentures
• Insurance policies – if the estate has been nominated as the beneficiary
• Superannuation – if the estate has been nominated as the beneficiary
• Items of personal property including furniture, jewellery, etc
• Motor vehicles
• Cash on hand

Property and assets owned jointly should also be included in the list together with details of any joint owner.

Application
Once the appropriate application has been prepared and finalised, it will be filed with the Supreme Court of NSW.

Probate OR Letters of Administration Granted
Once a Grant of Probate OR Letters of Administration has been granted by the Supreme Court, The executor/administrator will then be responsible for the following:

• Protect and collect the real and personal assets of the Deceased
• Pay all estate debts and discharge all estate liabilities
• Notify all interested parties including the beneficiaries that an application has been lodged
• Finalise income tax returns for both the individual and for the estate
• Take the necessary steps to distribute the estate amongst the beneficiaries

Beneficiaries have no power to make decisions about how an estate is to be administered, this is governed by the terms of the Will and becomes the responsibility of the executor/administrator appointed. Beneficiaries are however entitled to the particulars of what comprises the estate and how it is to be distributed.

If a claim is made pursuant to the Succession Act 2006  against the estate, the executor/administrator is required to meet and comply with the claim including mediation to settle the claim.

Beneficiaries only have a right to take proceedings against the executor/administrator if the executor/administrator fails to administer the estate diligently and, in accordance with the terms of the will, if applicable.

Distributing the estate
An estate will be distributed in accordance with the terms of a Will, where a Grant of Probate has been granted.

If an Application for Letters of Administration has been granted, the estate will be distributed in accordance with the Succession Act 2006  to family members in the following order:

• Spouse
• Children
• Parents
• Siblings
• Nieces/Nephews
• Children of nieces/nephews
• Grandparents
• Aunts and Uncles
• Cousins

Contact Sanford Legal today for an appointment to plan your estate.