We say to our clients “Plan for the worst, live for the best”. The three basic documents you should have are a Will, Power of Attorney and Enduring Guardian.
Estate planning for an unforeseen tragedy or illness or injury that happens while you’re alive. Planning for what happens after you die is absolutely essential. When money is involved, we’ve seen the worst in people. We have seen families torn apart because of a lack of planning.
Whether they are big or small, families and estates can be complicated. Especially with the rise of blended families, defacto relationships, increased divorce rates and second and subsequent marriages.
Our team strives to give you the right advice about what you need to protect yourself, your family and your assets. After death we advise and assist your executor to administer and distribute your estate to the beneficiaries in your Will.
Examples of the estate planning work we do are:
- Testamentary Trusts
- Powers of Attorney
- Enduring Guardian
- Binding Financial Agreements
The death of a family member can be the most traumatic time in one’s life. Emotions are heightened, disagreements arise, and family members can behave in a very unpredictable way. We have seen families torn apart, especially when a family member tries to contest a Will or when siblings do not share equally in a parent’s Will.
Preparing a Will takes experience and a thorough knowledge of estate planning law, which can be complex depending on a person’s personal and financial circumstances.
Rachel Clarke Legal will take thorough instructions, including compiling a comprehensive history of your personal and financial circumstances, and we will ask you how you wish to divide your estate. If it can’t be done the way you want it, or if there’s a risk of someone contesting your Will, we will tell you and offer you solutions so your testamentary wishes can be achieved.
The reality is you can’t. However, having a Will properly drafted can deter people making a claim or can significantly reduce any provision a court makes if someone does contest your Will.
If you draft your own Will or prepare a Will downloaded from the internet or purchased from a newsagent, your intentions may not be expressed clearly enough and you may have missed an important legal requirement. Preparing your own Will can also prolong the length of time it takes to settle your estate after you die. Having a Will properly prepared by Rachel Clarke Legal can help avoid all of these pitfalls.
If you die without a Will, you are intestate. This means that there are no formal arrangements in place to properly dispose of your assets and property. The rules around intestacy are quite specific, and being intestate can mean your estate is not handled as you would have wished and may go to people you don’t want. It can make the process of finalising your estate very lengthy and complicated, with an administrator appointed by the Supreme Court of NSW to handle your affairs.
Imagine for a moment that you have a serious car accident, are in hospital with major injuries. You are unable to make decisions in relation to your ongoing medical care. You have bills to pay, including your mortgage payments, which you can’t make. What do you do in a situation like this? Unless you have an Enduring Guardian and a Power of Attorney, your financial affairs cannot be dealt with and medical decisions cannot be made.
A Power of Attorney enables you to nominate a person or persons who you trust, the power to handle your legal and financial affairs if you are unable to for a number of reasons. This is not a responsibility that should be granted lightly and should only be granted to those you trust. Proper legal advice is essential when making these decisions.
An Enduring Guardian is a different legal document and often misunderstood. This is a document where you can nominate a person or persons to act on your behalf to make health and medical decisions if you can’t make those decisions for yourself.
Both a Power of Attorney and Enduring Guardian are documents which require a thorough explanation by a lawyer to help you understand the potential consequences involved. If these powers are given to the wrong people, the consequences could be disastrous and costly.
When you die, the only person with the legal authority to deal with your assets and finances, is your executor named in your Will. Your executor will generally need to obtain that authority by obtaining a grant of probate from the Supreme Court of NSW. This means the Court must deem the Will you have made, valid and once the probate is granted, the executor can administer the estate and make distributions to the beneficiaries.
Rachel Clarke Legal has many years’ experience in looking after and advising executors and family members in deceased estate matters, including applications for probate, liquidation of assets, administering estates and distribution to beneficiaries.
What are Binding Financial Agreements or BFAs? Parties to a marriage or defacto relationship whether it be a man and a woman or a couple of the same sex, can enter into a binding legal agreement about their financial arrangements should their marriage or de facto relationship breakdown. The agreement sets out which party will retain certain assets of the relationship and how assets are to be divided up. It also sets out how debts arising from the relationship are to be paid.
This agreement if drafted in accordance with the relevant law are binding. They help provide a degree of certainty for the parties if their relationship breaks down. It also makes it very hard for a party to commence court proceedings against the other to seek a greater share of the assets of the relationship.
Do you need a BFA? We recommend it for people in a relationship where there is a large disparity in income or where one party has significantly more assets than the other when entering the relationship. We can provide advice on whether a BFA is suitable for your particular circumstances.