Having a properly prepared Will makes the process smoother for those left behind dealing with the death of a loved one. A Will ensures your assets are distributed in accordance with your wishes. Not having a Will can add unnecessary stress, delays, and costs to what is already a difficult time.
Preparing a Will with proper estate planning ensures that your assets are distributed as you intend them to be with proper risk management, financial and tax considerations.
We prepare the necessary Court documents so that the deceased estate can be dealt with whether or not there is a valid Will.
By using a Power of Attorney you give another person the power to act on your behalf (for example, to buy and sell things for you or operate your bank account). It does not mean you lose control over your affairs. You can still deal with all matters, while your ‘donee’ (the person you appoint to act on your behalf), can do those things which you have authorised.
An Enduring Power of Attorney is a Power of Attorney that continues to operate even though you may later become of unsound mind, for example, if you are unable to communicate after a stroke or become senile.
An Advanced Care Directive can appoint another person or persons to make decisions about your medical treatment and also your personal welfare such as decisions about where you live and how you live. An Advanced Care Directive can also nominate how you wish to be treated if you are in a vegetative state or in the final stages of a terminal illness and you are unable to make important decisions.
Our firm can assist you to set up a Family Trust, which allows a person to transfer assets out of their name while still keeping control of the assets.
Estate planning is the process of anticipating and arranging for the disposal of an estate. Working in conjunction with an accountant, Belperio Clark can explain to you how to maximise the number of your assets that are passed on after your death.
Belperio Clark can assist in the administration of an estate, including applying for Probate, selling or mortgaging the estate, distributing proceeds of the sale and leasing the estate of a deceased person.
If you die without a Will, an Act of Parliament will decide how your property is distributed. It may be more expensive and there may be greater delay in your estate being administered. A properly and professionally drafted Will nominates who is to administer your estate and how your estate is to be distributed. There is greater tax planning opportunities and flexibility in having a Will drafted.
If someone dies without a Will they die ‘intestate’.
If the deceased owns real estate in their sole name or assets worth more than $100,000, the person who intends to administer the estate will need to apply for a process known as Letters of Administration.
Letters of Administration may be more expensive and may result in a greater delay in the estate administration process. Once the administrator has been granted Letters of Administration, the estate will be administered in accordance with the laws of intestacy as follows:
1. If the deceased leaves a spouse or a de facto partner with no children the whole of their estate will pass to the surviving spouse or domestic partner.
2. Where the deceased leaves both a spouse and a domestic partner, each is entitled to an equal share of the property including any personal belongings of the deceased that would have gone to the sole spouse or domestic partner.
3. If the deceased leaves a spouse or a domestic partner and children the estate will be distributed in one of two ways:
a. If the estate is worth less than $100,000, then the surviving spouse or domestic partner will be entitled to the whole of the estate including all personal belongings; or
b. If the estate is worth more than $100,000, then the surviving spouse or domestic partner will be entitled to the sum of $100,000 and subsequently, half the balance of the estate plus the personal belongings of the deceased. The children of the deceased will be entitled to the balance of the estate in equal share.
4. If the deceased dies with no surviving spouse or domestic partner but does have surviving children then those surviving children will receive in equal shares the whole of the estate. If any child of the deceased predeceases the deceased but does leave a child behind of their own that child would be entitled to their parent’s inheritance. However if a child predeceases the deceased leaving no children then that child’s share will be divided amongst the deceased’s other surviving children.
5. “Children” includes children who are adopted, but not a step-child. A person who has been adopted however cannot share in his or her birth parent’s estate after death of that birth parent. “Children” also encompasses all children born within or outside the legal marriage.
6. If the deceased dies owning a property as joint tenants then the law of survivorship will apply and the property will pass automatically to the surviving owner. Therefore, the intestacy laws will not apply if a property is owned a joint tenants.
There are no strict rules in relation to how often a Will should be updated or reviewed. It is recommended that you review your Will approximately every 5 years. With the passage of time everyone’s circumstances will change. There are also certain events which may affect the validity of your Will.
In South Australia, if your Will is not made “in contemplation of marriage” a lawful marriage will make your Will invalid. If you therefore do not update your Will to reflect a marriage, the laws of intestacy will apply and a significant portion of your estate may be automatically awarded to your spouse.
In South Australia, a divorce will not make your Will invalid. It will however revoke any clause which leaves a gift to your ‘husband’ or ‘wife’. Ex-spouses are also unable to act as the executor of your estate.
It is therefore important that in the event that you do separate from your spouse and or domestic partner that you review your Will and associated documents to ensure that they properly reflect your intentions.