Estate Planning

Estate planning is not just for the elderly, and it is much more complicated than filling in the "DIY Will Kit" you picked up while you were in line at the post office. In fact, we have seen DIY Will Kits cause more problems than they prevent.

Not only should you have a properly drafted Will in place, you should also consider having an Enduring Power of Attorney and Enduring Guardian prepared.

At LJ Law, we will answer the questions you ask, and answer the questions you may not have thought to ask; assisting you to create an estate plan which will take care of you, should you need it, but also your family after you're gone.

Here is a brief rundown of the estate planing documents, we offer:

Enduring Power of Attorney

An Enduring Power of Attorney operates while you are alive and is a document which appoints a person or people (the attorney/ies) to take care of your financial, business, and legal affairs. Your attorney/ies must agree to their appointment and need to sign the document too.

You can select when you want the Enduring Power of Attorney to start operating; it can operate from the time your attorney/ies sign the document or once your medical practitioner provides a document to say you no longer have capacity to make your own decisions.

Enduring Guardian

An Enduring Guardian is similar to an Enduring Power of Attorney, except it appoints a person or people (the guardian/s) to make decisions about where you live, what kind of health care and medical treatments you receive, and personal services (like haircuts). Again, your guardian/s must accept their appointment by signing the document also.

The Enduring Guardian operates while you are alive and will only start operating if your medical practitioner provides a document to say you no longer have capacity to make these decisions for yourself.

Will

We have left the Will until last, because your Will is the estate planning document which operates once you die.

Before you have your Will prepared, you will need to think about who you would like to appoint as your executor/s, beneficiaries, and if you have minor children, testamentary guardian of your children. 

The executor of the estate is the person or people who is responsible for carrying out the directions in your Will. They will deal with the lawyers and ensure the estate is distributed according to your Will.

Next, you should think about how you would like to distribute your estate. Start with specific gifts you might like to give. Is there a special piece of jewellery you would like to leave to someone in particular? Then, think about how would you like to distribute the residue of your estate, this is everything apart from any specific gifts you have made. 

If you have minor children, or think you will in the future, you should think about appointing a testamentary guardian, someone to look after the children if you and the other parent are not around to do it. We would recommend speaking to the person or people who you would like to appoint.

Losing a loved one is a very difficult time, not only do you need to organise the service, the burial, and the wake. After that is all done, you need to finalise the estate. It can feel like you barely have time to breathe, let alone grieve.

We do our best to take the stress of administering the estate off your hands, so that you can concentrate on what really matters.

In NSW, Probate or Letters of Administration (we will explain the difference further down) is required where:

• the deceased owned real property;
• a bank account has $50,000 or more (this varies from bank to bank, some will require Probate or Letters of Administration if the balance is $15,000 or more); or
• a substantial superannuation interest is payable to the estate.

The main difference between Probate and Letters of Administration is that Probate is applied for where there is a Will, and Letters of Administration is applied for if there is no Will. 

Prior to applying for a grant of 

Probate or Letters of Administration, a notice of intention to apply must be published at least 14 days prior to applying. 

Below is a brief run down of the process of obtaining Probate or Letters of Administration.

Probate

If you have been appointed as the executor under a loved one's Will, it is important to obtain legal advice as soon as possible, as executors are required to apply for a grant of Probate within 12 months from the date of death.

What is Probate? Probate is the process of proving to the Supreme Court that the Will is valid, so that the estate can be distributed in accordance with the Will.

Next, we need to work out what the assets and liabilities of the estate are, and the requirements of any asset holders to release assets to the estate, for distribution to the beneficiaries. 

Hopefully, the deceased was well organised, and they told their executor exactly where to find all this information. However, sometimes the deceased is not so well organised, and we may need to rifle through a cardboard box full of bank statements from the 1970s to work out what the assets and liabilities are. Once we know what the assets and liabilities are, we can apply  to the Supreme Court for Probate.

Letters of Administration

If someone dies without leaving a Will, they die 'intestate'. Depending on the value of the deceased's estate, and the requirements of the asset holders (banks, share registries etc) to release assets, a grant of Letters of Administration may be required prior to the estate being distributed.

If there is no Will, we will need to find those people eligible to the estate under the Succession Act 2006 (NSW), and obtain their consent to apply to the Supreme Court for Letters of Administration.

Next, we need to work out the assets and liabilities of the estate, just like we do when we are applying for a grant of Probate.  Once we know what the assets and liabilities are, we can apply  to the Supreme Court for Probate.

After Probate or Letters of Administration is granted

Once the Supreme Court has granted Probate or Letters of Administration, the assets can be called in from the asset holders and liabilities can be paid. 

A notice of intended distribution must be published at least 30 days prior to distributing to the beneficiaries.

Distribution can be made to the beneficiaries once six months from the date of death has past.