Will – A Will is a written declaration of a person’s intention as to arrangements to take effect after their death. Those arrangements may include details about burial and always include directions about the distribution of a person’s estate following death.
It is of the utmost importance for every adult to have a properly prepared and up to date Will. Some people find it difficult to deal with this issue because they don’t wish to consider the implications of their death, whether premature or at an old age. Nonetheless to fail to leave a valid Will usually results in significant complications for the surviving next of kin in dealing with the deceased’s estate. It also has the effect of increasing costs associated with the administration of the deceased’s estate. More importantly, however, it means that the deceased has not had any role in determining how they want their estate divided. If there is no Will the estate is distributed among the deceased’s next of kin in accordance with the Succession Act, which imposes an arbitrary and often unfair result on the deceased’s family.
In considering instructions to be given for the preparation of a Will, the following should be taken into account:-
- The appointment of an executor or executors. The executor is the person appointed to carry out your wishes as expressed in the Will and is usually your next of kin (such as spouse or adult children), but may be a close friend. There may be two or more executors, and you may appoint alternate executors (in the event that the first person appointed dies).
- If there is no suitable close relative or friend whom you might appoint as executor, an appointment can be made to the NSW Trustee & Guardian, or a private solicitor. Additional costs will be incurred by the estate in relation to such an appointment, and it is not usually the preferable course.
- Consideration also needs to be given to the appointment of a guardian for infant children.
- In determining the gifts which you wish to make, usually there are a number of possible classes of beneficiaries such as spouse/de facto spouse, children, siblings, and others, that should be considered. A common way for a husband or wife to deal with their estate is to simply leave the estate to their spouse and appoint their spouse as executor. In the event of the spouse predeceasing, then one or more adult children might be appointed as executors and the estate divided among the children (usually in equal shares) with the share of any child who predeceases, going to that child’s children (the deceased’s grandchildren).
- Provision may be made in the Will for the use of part of a child’s inheritance (or the income earned on their share) for their benefit, such as payment of education expenses, whilst they are minors.
- When considering the construction of a Will, thought must also be given to any former spouse and arrangements for your superannuation fund. A Will must be drafted so far as is possible to avoid it being contested.
The preparation of a will generally involves two appointments, the first to take instructions and discuss the terms of the Will, and the second to ensure that it is validly executed (signed).
Power of Attorney – A power of attorney enables the person appointed by you to do on your behalf whatever you can legally do. It may be a general power without restrictions, or it may be limited for a specific purpose or purposes. As with the appointment of an executor in your will, you might appoint more than one attorney, and in that case appoint them to act either together or independently.
It is typical for clients to provide a Power of Attorney to a partner and/or adult children in circumstances where they travel, or may be contemplating undergoing a major medical procedure, or if because of incapacity they are unable to attend to their own affairs. It is best practice to consider the appointment of an attorney when a will is prepared, and in any event the appointment of an attorney should be made by the time a person is in their 40’s.
The Power of Attorney may be revoked at any time and the person or persons appointed as your attorney must at all times act in your best interests.
Power of Enduring Guardianship – The purpose of a Power of Enduring Guardianship is to enable the person or persons appointed to make decisions about medical issues and living arrangements on your behalf in the event that you are unable to make those decisions yourself. It is common for a Power of Enduring Guardianship to be prepared at the same time as a Power of Attorney is prepared, although they are separate powers and therefore separate documents.
As with the Power of Attorney, you may appoint one or more guardians to act together or individually, and you may appoint alternate guardians, for example, your spouse, and in the event that your spouse were to predecease you, one or more of your children.