There is no one answer about how to do your Will. It all depends on your assets, your circumstances and who your beneficiaries will be.

You need to make a will that makes your wishes clear, that avoids confusion and conflict amongst your loved ones, and that is legally valid. Doing this will protect your family and friends from costly and stressful legal disputes.

Things you need to consider

Who will be your Executors?

Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the Will are upheld.

Who will be your beneficiaries and what effect will their inheritance have on their circumstances?

You can nominate anyone as a beneficiary and distribute your assets in any way you like, however, if you don’t provide for your family and dependents, your will can be contested and your hard-won assets used on litigation fees.

You also should consider the effects that an inheritance may have on your beneficiaries. In some cases, a testamentary trust can sidestep potential taxation problems, so it’s important that you get specific advice about your situation.

How do you know a Will is valid?

To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed, and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries, or related to beneficiaries and must be over 18.

If there is any doubt or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your Will.

How often should I review my Will?

You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, the death of a beneficiary or if your assets change significantly. We also recommend that you take a look at your Will every couple of years just to make sure that it is still the best instrument for you and for your family.

We can help

We know the potential pitfalls and will ask you all the right questions to make sure that you have considered every possibility. We can advise you as to whether you would be best with a Will or a Testamentary Trust. We can safely store your Will in our secure vault.

Contact us to find out more or to arrange an appointment with Annette Esposito.

Esposito Law & Co can help you with the four types of Powers of Attorney used in Victoria:

• General Power of Attorney which appoints someone to make financial and legal decisions on your behalf for a specific period of time, for example, if you are overseas and need someone to manage your financial affairs while you are away.
• Enduring Power of Attorney (Financial), which is used to appoint someone to make legal and financial decisions for you in the event that you lose the capacity to make those decisions yourself.
• Enduring Power of Attorney (Personal), which is used to appoint someone to make personal and lifestyle decisions on your behalf such as your living arrangements if you have lost the ability to make decisions for yourself.
• Appointment of Medical Treatment Decision Maker, which is used to appoint someone to make medical treatment decisions on your behalf if you cannot make them yourself.

Who can make a Power of Attorney?

Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.

When should I make a Power of Attorney?

Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.

When does it start?

For a Powers of Attorney (Financial) and (Personal) they can begin when you nominate that they should. Power of Attorney (Medical Treatment) only commences when you are unable to make your own decisions.

Who should I appoint to be my Attorney?

You need to appoint someone your trust to make the right decisions. With a General Power of Attorney, an Enduring Power of Attorney (Financial) and Enduring Power of Attorney (Personal) you can appoint more than one person to make the decisions jointly.

What are the legal responsibilities of my Attorney?

They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.

Who should I talk to about it?

It’s really important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.

Can I change my mind?

Yes, as long as you still have the decision-making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.

Contact us to find out more or to arrange an appointment with Annette Esposito.

Are you a Will Executor?

Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.

Executor Duties

An executor’s duties may include responsibilities such as:

Organising the funeral

Locating the Will

Obtaining a copy of the Death Certificate

Making sure any property and assets are safe and secure

Determining the value of assets

Applying for Probate

Paying insurance policies, debts and taxes

Collecting monies belonging to the deceased from financial institutions and insurance companies

Collecting debts owed to the deceased

Lodging tax returns for the deceased and for the estate

Selling properties and assets

Reporting to beneficiaries

Distributing the proceeds of the estate to beneficiaries

Setting up trusts (if required)

Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.

Do Executors get paid?

It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then it may be provided in the Will, you can ask the beneficiaries or you can apply to the Supreme Court for a commission.

Do I need a Lawyer?

Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.

What is Probate?

Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling a property and obtaining bank funds.

What if there is no Will?

This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you an authority to finalise the estate.

Contact us to find out more or to arrange an appointment with Annette Esposito.

Planning for your family’s future after you’re gone is a really important legal task.

If you take the time now to make an effective Will, you can save your family not only stress but money in what will undoubtedly be a difficult time for them.

Esposito Law & Co can help:

• Write a will that clearly reflects your wishes
• Establish testamentary trusts Wills
• Advise you in regard to choosing executors and guardians
• Advise in regard to estate tax (including capital gains) and financial concerns
• Safely store your will and other important legal documents

At the same time as considering your Will, we strongly recommend that you also put in place plans for any future incapacity through Powers of Attorney. This ensures that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so on your behalf.

Contact us to find out more or to arrange a consultation with Annette Esposito.

At Esposito Law & Co we understand that dealing with a deceased estate is one of the more difficult challenges in life. From mountains of paperwork to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life.

So, let us help you by:

• Advising executors and trustees in regard to their duties and rights
• Applying for Probate of the Will in the Supreme Court
• Applying for Letters of Administration (if the Will is deemed invalid or where there is no Will)
• Identifying estate assets and liabilities
• Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
• Selling or transferring estate property including estate auctions
• Paying estate debts including mortgages, funeral costs, and testamentary expenses
• Advising in regard to family and testamentary trusts
• Distributing bequests to beneficiaries
• Organising information for estate tax returns

Contact us to find out more or to arrange an appointment with Annette Esposito.