Wills, EPAs and Estate Administration
Estate planning (also referred to as succession planning) is the process of putting strategies in place to ensure your personal and business interests are managed according to your wishes when you pass away or if you lose capacity.
Strategies vary depending on the type of assets you own, your family situation, and your personal intentions. Particular consideration needs to be given to superannuation, blended families and second marriages, jointly owned assets, trusts, commercial and business interests, loan repayments, and overseas assets, to name just a few examples.
Our experienced estate planning solicitors and paralegals including John Greenhalgh, Scott Lorback, Karina Jamieson, Paul Eastman and Bryan Pickard can assist you with all aspects of estate planning, from simple Wills and EPA’s to testamentary trust wills, mutual wills, international asset planning, asset restructuring, business succession, superannuation succession, trusts and complex family circumstances.
A Will directs what happens to your assets and liabilities when you die. A Will can also be used to:
Appoint guardians for minor children
Establish testamentary trusts to protect the estate assets if there are concerns about a family member’s abilities, potential family law or bankruptcy issues, or to maximise tax savings
Transfer assets conditionally to beneficiaries, such as directing that a particular asset should not be sold, or that a beneficiary should only receive a gift on reaching a certain age
Direct what is to happen to your business, company or trust in certain circumstances
Apply certain assets such as life insurance or superannuation proceeds for selected purposes such as discharging an outstanding mortgage
Just as important as considering what assets and liabilities should be dealt with by your Will is considering what assets and liabilities should be kept out of your estate and out of the Will’s scope. It is often necessary to quarantine assets to protect them from potential claims by creditors, excluded family members and former partners.
If you die without leaving a valid Will, your estate must be distributed according to Queensland legislation. Not only can this lead to unintended consequences, but almost always leads to significant delays and additional expense for those left behind.
Enduring Powers of Attorney
An Enduring Power of Attorney (also referred to as EPA or EPOA) directs someone to manage your financial and personal affairs if you are unable to manage them yourself, whether because of incapacity or absence. This is a critical and often overlooked document that effectively nominates a person or persons to stand in your shoes to make decisions on your behalf. That person is known as your attorney. It is important to seek advice before making an EPA to make sure that the attorney can perform the role as intended. There are many legal pitfalls to consider when drafting an EPA.
If you lose capacity but have not made a valid EPA your family members may need to apply to a court or tribunal to be formally appointed to make decisions for you. Otherwise the Public Trustee or Public Guardian may take charge of your affairs.
Binding Death Benefit Nominations
Many people are unaware that their Will does not direct what happens to their superannuation after death. Generally, superannuation does not form part of a person’s deceased estate. The same principles apply whether superannuation is held in an industry or retail fund or is self-managed. The experienced team at Greenhalgh Pickard can guide and advise you in relation to your superannuation succession.
Death benefit nominations are separate documents directing how your superannuation is paid on your death and are a crucial aspect of estate planning. The class of beneficiaries who may be nominated is strictly regulated and it is important to make an informed decision when making a nomination. Without a current, valid death benefit nomination in place, your superannuation may end up in unintended hands when you die.
The team at Greenhalgh Pickard can help you navigate the complexities of administering a loved one’s estate with understanding and sensitivity. We can provide comprehensive assistance and deal with all aspects of a deceased estate, or we can simply provide advice and guidance to equip the executors to administer the estate themselves. Executors have multiple responsibilities and there can be significant legal and financial consequences if these are not properly carried out.
For most estate administration matters we will defer payment of our fees until funds are available to the estate. We can assist with all aspects of deceased estate administration, including obtaining grants of probate and letters of administration, releasing nursing home deposits, transferring ownership of real estate and assisting with any tax issues.
Estate litigation – no win, no fee
Have you been left out of a Will? Do you believe your inheritance isn’t enough for proper support and maintenance? Want to dispute a Will or your inheritance? Greenhalgh Pickhard can help!
Greenhalgh Pickard offers a “no win, no fee” arrangement for estate litigation matters covered under the Family Provision Applications (FPA) in the Succession Act 1981.
FPA claims involve a person with a closely defined relationship to the deceased who wish to apply for a share of the estate, or a larger share, as a result of the deceased not making an adequate provision for their maintained and support.
To be eligible for “no win, no fee”, you must be able to answer “yes” to the following questions:
Is the deceased a close relative (spouse/child/step-child) or are you a dependent of them?
Were you left out of, or not adequately provided for, in their will?
Do you have a reason/need for provision (for example, dependent/infirm)?
If you want to make an FPA claim you will need to give notice of your intention to do so within six months of the death of the deceased, with an application being commenced within nine months. If you have not made your application within the nine-month application period the court may still hear the FPA, but will typically only allow it if one or more of the following criteria are met:
The estate has not been distributed in full
The application has a strong likelihood of success
There were adequate reasons for the delay
Unnecessary prejudice will not arise from the hearing
If the court determines that the deceased did not make adequate provision it will be for the court to calculate what provision should be made for proper maintenance and support to be achieved.
It is important to remember that the jurisdiction of the court does not extend to re-writing a will for the sake of fairness – it is merely entitled to make provision for the proper maintenance and support of applicants.
To determine an FPA, the court reviews all circumstances surrounding the matter including:
The size of the deceased’s estate
The claimant’s situation, including health, age and future prospects
Conduct of the claimant towards the deceased that may weaken or nullify their claim
The health, age, prospects and financial positions of all beneficiaries named in the will
The relationship between the claimant and the deceased
Care and support given or afforded to the deceased by the claimant in their domestic life
All relationships between the deceased and others with a legitimate claim
Estate planning and estate administration inevitably involve taxation issues. Being an integrated firm, our accounting and legal teams can collaborate seamlessly to provide our clients with expert advice across both areas. This saves time and money for our clients, and also gives them the confidence in knowing that all aspects of their matters have been explored.
Greenhalgh Pickard is an innovative Queensland accounting and law firm, with clients predominantly living and working on the Sunshine Coast or the Whitsunday Coast but with many clients also located throughout Queensland, interstate and even overseas. With offices in Caloundra, Kawana Waters, Coolum Beach and Airlie Beach, Greenhalgh Pickard takes pride in being trusted guides and advisers to clients everywhere.
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