Estate Planning

Estate planning is a term that is used fairly frequently but it's important to define and explain what's involved in such an undertaking.

It involves a will but is broader than that one document - it includes life insurance, a valid will, superannuation nominations, powers of attorney and power of guardianship.

Superannuation does not automatically come within your estate when you die so it is important to consider when estate planning. Think about who you want to benefit from your superannuation, after many years of maturing, it may be worth a great deal.

It's also important to nominate who the guardians are for your children in the unforeseen event that both you and your partner die. Talk to family and friends to work out who would be willing to take responsibility for your children and who would do the best job.

Similarly, nominating a power of attorney is an important aspect of estate planning. There are different types of power that can be appointed:

A general power of attorney allows a nominated person to make legal and financial decisions on your behalf. This is usually for a specific time frame and would most likely be used if you are overseas and are unable to make those decisions for yourself, for whatever reason.

An enduring power of attorney allows for a nominated person to permanently make financial and legal decisions on your behalf if you lose the ability to do so.

A medical power of attorney only gives the nominated person the power to make medical decisions on your behalf and does not extend to decisions of a financial or legal matter.

If you don’t want to appoint an attorney in your estate planning other documents can be drafted to stipulate how you want matters handled in the event you can't make the decisions for yourself. These include an enduring power of guardianship, an anticipatory direction and an advance healthcare directive.

To assist your loved ones should something happen to you, you should keep your documents in a safe, accessible place that is known to your executor/s or attorney/s.Those documents may include your birth certificate, marriage certificate, deeds to property, as well as your details for your bank accounts and other financial holdings.

Contact Craddock Murray Neumann Lawyers on (02) 8268 4000 for friendly professional service.

What happens when an executor cannot find a will?
Date: May 24, 2016

To deal with the deceased estate, the executor will need to firstly obtain a grant of probate on the basis of the original Will. What happens if the original Will cannot be found?

Will maker can make no provision made for adult children
Date: Aug 20, 2014

It is clear from decided court cases that the Court accepts that willmakers are in certain circumstances entitled to make no provision for children, particularly in the case of children who treat their parent , the willmaker, callously, by withholding without proper justification their support and love for them in their declining years. Even more so when that callousness is compounded by hostility.

Caveats in Probate Proceedings
Date: Jul 24, 2014

The function of a caveat in probate proceedings is to obtain a stay of proceedings seeking probate, administration or resealing except upon notice to the caveator, i.e. the person who lodges the caveat.

Executors and Administrators living outside Australia
Date: Jun 23, 2014

Generally, the Supreme Court of New South Wales will not grant probate or letters of administration to an applicant living outside of Australia.

Capacity to make a will
Date: Jun 20, 2014

In order to make a will a person must have sufficient mental capacity. If a person does not have the required mental capacity their will may be found to be invalid.

The Problem With Internet Wills
Date: Jun 18, 2014

The Law Society Council has issued a statement on wills practice to address concerns with developments in internet will drafting and the potential for problems of identification, verification and assurance that a willmaker is giving direct instructions free of influence or coercion by relatives, carers, or other third parties.

Changes to Forms: Powers of Attorneys
Date: Jun 16, 2014

The power of attorney is an important and powerful legal tool. It allows you to appoint a trusted person to act on your behalf in relation to your legal and financial affairs when you are temporarily or permanently incapacitated. Some recent changes to the forms used to appoint a power of attorney clarify certain aspects of the process of appointment.

What are Powers of Attorney?
Date: Jun 16, 2014

A power of attorney is a legal document where you, as the ‘principal’, appoint another person your attorney to control and make decisions on your behalf regarding your legal and financial activities which could include dealing with your money, bank accounts, real estate, shares or other assets. If you want your attorney to deal with real estate, the power of attorney must be registered with the Land and Property Information Office.

Applications For a Grant of Probate or Letters of Administration on Presumption of Death
Date: Dec 17, 2013

An Application for a Grant of either Probate or Letters of Administration on presumption of death occurs in every case where the deceased’s body cannot be found. This is the case even though a Certificate of Death may have issued.

Informal and Stopgap Wills
Date: Nov 26, 2013

There may be circumstances in which as a result of time or other constraints the usual time and consideration that should be taken to prepare a formal will cannot be taken.

What is a “Benjamin Order”?
Date: Oct 04, 2013

An issue sometimes facing a plaintiff is establishing the identity or whereabouts of persons to whom the deceased’s estate or part of the estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that a person exists or that person had descendants who might still be alive.

How do I keep my will safe after I have made it?
Date: Sep 04, 2013

There are several ways that a testator (the person who is making the will) can store her/his will and/or information about her/his will.

Will my will still be recognised by NSW law if I make it outside NSW?
Date: Jul 05, 2013

You may have made a will or be considering the possibility of making a will outside NSW. The relevant legislation deals with this situation.

TIME LIMIT (FROM DATE OF DEATH) FOR MAKING A FAMILY PROVISION CLAIM
Date: Jul 03, 2013

Section 58(2) of the Succession Act 2006 requires an application for a Family Provision Order to be made not later than 12 months from the date of death of the deceased person unless the court otherwise orders “on sufficient cause being shown”.

Does a solicitor taking instructions to draw a will owe a duty of care to beneficiaries
Date: May 09, 2013

It is settled law that a solicitor retained to draw a will and ensure that the will drawn up takes effect in accordance with its terms owes a duty of care to an intended beneficiary under the will. That duty gives rise to a duty to exercise reasonable care and skill in performance of those tasks – High Court decision of Hill v Van Erp 1977 HCA 9.

THE DOCTRINE OF “SUSPICIOUS CIRCUMSTANCES” IN PROBATE CASES
Date: Mar 26, 2013

The doctrine of suspicious circumstances was explained in the case of Vernon v Watson (2002) NSWSC.

UNDUE INFLUENCE - CAPACITY TO MAKE A WILL – TESTAMENTARY CAPACITY
Date: Mar 25, 2013

It is often said that concepts of testamentary capacity and knowledge and approval of a will are distinct, and that the issue of knowledge and approval only arises once it is found that a willmaker has testamentary capacity.

TESTAMENTARY CAPACITY AND THE APPOINTMENT OF THE NSW TRUSTEE & GUARDIAN
Date: Mar 14, 2013

The making of an Order appointing the NSW Trustee & Guardian the manager of a person’s estate does not in all circumstances lead to the conclusion that the managed person lacks testamentary capacity during the currency of the order.

What is the effect of marriage on a will?
Date: Mar 13, 2013

There are a number of times in your life when you should review your will to make sure that it will give effect to your intentions in relation to your property and estate.

Life changes and wills
Date: Mar 12, 2013

Did you know that your will actually becomes invalid once you marry? Only in special circumstances does its validity continue after you marry.

Estate planning for unforeseen circumstances
Date: Mar 11, 2013

The importance of estate planning is most clearly seen when unforseen circumstances occur.

WHAT HAPPENS WHEN A BENEFICIARY WITNESSES A WILL?
Date: Mar 08, 2013

Section 10 of the Succession Act 2006 appears under the heading “Can An Interested Witness Benefit From A Disposition Under A Will?”

WHAT IS TESTAMENTARY CAPACITY – CAPACITY TO MAKE A WILL?
Date: Mar 07, 2013

To make a valid will a person must have testamentary capacity which is described as being “... of sound disposing mind when the will is made and there must be no coercion which overpowers the volition of the testator” – Hall v Hall (1868).

TESTAMENTARY CAPACITY – CAPACITY TO MAKE A WILL – WHAT DOES THE COURT CONSIDER?
Date: Mar 05, 2013

The approach to the issue of determining testamentary capacity has changed little since the 1924 decision of Bailey in which the following principles were set out.

WHAT IS UNDUE INFLUENCE IN PROBATE?
Date: Mar 03, 2013

Undue influence in probate is different from the equitable doctrine of undue influence.

Can a Minor Make a Will or Revoke a Will?
Date: Feb 28, 2013

A minor is the legal description of a person under the age of 18 years. As a general rule a minor cannot make a will.

Considering debt with estate planning
Date: Feb 13, 2013

Debts do not just disappear when you die. Effective estate planning includes ensuring you are debt free when you die or alternatively leaving enough money behind so that your family are not left dealing with your debts.

Examining the process of estate planning
Date: Feb 01, 2013

Estate planning is a term that is used fairly frequently but it's important to define and explain what's involved in such an undertaking.

Proper funeral planning
Date: Jan 31, 2013

If you are thinking about estate planning you should also think about the arrangements you'd like for yourself when it comes time for your farewell, this can be done by drafting a directive along with your will.

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