In as little as one hour you can secure your future and have peace of mind that your assets will be distributed in exactly the way that you want.

Call Mantzoros & Partners Lawyers now on 08 8396 3143 or use the chat option to arrange an appointment to discuss your wills and estates query.

What is a Power of Attorney

power of attorney is a document that gives a person the power to act on behalf of the person or company who gives the power. Giving a power of attorney is giving someone the authority to deal with the donor’s financial affairs. This is different from an advance care directive, which enables the donor to say what they want to happen in relation to certain personal areas of their life.

In South Australia any person who is over 18 years and who has ‘legal capacity’ can make a power of attorney. The power of attorney can be as wide or narrow as the donor wishes, for example it can be a general power of attorney where the donee can do anything that the donor can do or the power of attorney can be limited to dealing with a single piece of property or bank account whilst the donor is overseas.

There are two different forms of powers of attorney – they have similarities but there are some important differences.

  • general power of attorneyis an authority given to a donee to deal with a donor’s financial affairs. For example, it allows a donee to buy and sell things or to operate a donor’s bank account if he or she is away on holidays overseas.
  • An enduring power of attorneyis a power of attorney that operates even though the donor is legally incapacitated, for example is unable to communicate after a stroke, or becomes senile. In these circumstances, a general power of attorney ceases to operate and actions taken under it after that time are invalid.

A general power of attorney and an enduring power of attorney both give an attorney authority to deal with a person’s financial affairs. However, while a general power of attorney is cancelled automatically if a person becomes legally incapacitated, an enduring power of attorney will still be effective.

Giving either power of attorney does not mean that the donor will lose control over their affairs. A person can still deal with whatever matters he or she chooses, while the donee can only do the things that the form allows.

A power of attorney ends when the donor dies. At this point, a will takes over.

It should be noted that a power of attorney completed in South Australia may not be recognised outside the State. Whilst there are provisions to recognise enduring powers of attorney in all states and territories, the situation is different with general powers of attorney.

A power of attorney has the potential to be very dangerous in the wrong hands so clearly the best safeguard is to choose a donee that is very trustworthy. There is no official checking done to ensure that donees are doing their job properly. If you give a power of attorney with no conditions, the donee is able to sell, mortgage or give away all that you own. 

The following suggestions may help you safeguard your interests

  • Let at least one other person know who your attorney is.
  • You may wish to make it a condition of your enduring power of attorney that you, or someone other than your attorney, must receive regular copies of your account statements from your financial institution.
  • You may wish to make it a condition of your enduring power of attorney that your attorney consult with certain others before, for example, selling your home. If you do this, it would be advisable to give the other people copies of your enduring power of attorney.
  • You may wish to make it a condition of your enduring power of attorney that your affairs be independently audited every year and that you or someone else receive copies of the audited accounts. There would be a cost involved in doing this.
  • If you decide to have your enduring power of attorney come into force only in the event that you suffer any subsequent legal incapacity, you may wish to make it a condition of your enduring power of attorney that any legal incapacity must be certified by your treating doctor for the time being.

The most important rule in selecting to whom to donate your power of attorney is – choose carefully. It should be someone you can trust to act in your best interests at all times. You can nominate more than one donee if you want to. If you choose to have two or more people, you can specify that they act jointly (all donees must sign) or jointly and severally (either of the donees can sign independently of each other).

The donee must keep full and proper records of everything he or she does, and must be seen to be acting in the best interests of the donor at all times. Failure to keep these records is an offence with a penalty of up to $1000. A donee who acts improperly can be held personally responsible to pay for any losses caused, and can even be found guilty of a criminal offence.

By agreeing to act as a donee, the donee is not accepting financial liability for the donor, for example, a donee does not have to pay a donor’s bills from their own pocket. Rather, a donee pays the donor’s bills from the donor’s own money. If there is not enough money to pay all the bills, the donee is not personally liable but may make other necessary arrangements.

A power of attorney stops operating:

  • if the donor or donee dies;
  • if the subject matter of the power of attorney is destroyed;
  • if either the donor or donee notifies the other that it is revoked;
  • where the power of attorney is a general power of attorney, the power of attorney expires if and when an expiry date is given; or
  • where the power of attorney is a general power of attorney, if the donor becomes legally incapacitated.
What are Advanced Care Directives?

Advanced Care Directives allows a person to:

  • set out values and wishes to guide decisions about their future healthcare and other personal matters;
  • set out what, if any, particular healthcare they refuse and in what circumstances; and
  • appoint one or more substitute decision-makers.

An adult person wanting to make an advance care directive needs to complete a specific form while she or he has legal capacity. In order to have capacity a person must understand what an advance care directive is and the consequences of giving an advance care directive.

While an advance care directive comes into force as soon as it is witnessed, it may only be used by a substitute decision maker or health practitioner if the person who gave the advance care directive has impaired decision making capacity.

What is a Will?

A Will is an important document that arranges for your assets to be dispersed after you pass away. Making a Will is the only way to ensure that a lifetime’s work is passed on to the people you choose.  It provides security for those who are close to you and for those you are responsible for, and may avoid unnecessary difficulties upon your death. Should you die without a Will (intestate) your estate may be divided according to a Government formula (the laws of intestacy) – a formula that may not reflect your wishes, and which may cause undue hardship, cost and delay for your family.

As part of your Will you must appoint an executor. The executor is the person who applies for probate and manages your assets until they have all been given to the people you selected. The executor should be someone that you trust, as they will be responsible for:

  • locating the Will;
  • ascertaining and securing assets;
  • proving the Will in Court;
  • discharging debts;
  • establishing Trusts;
  • preparing income tax returns and attending to capital gains issues; and
  • distributing and transferring assets according to the terms of the Will.

Your Will should also deal with the assets you own and are likely to own in the future and whom you wish to leave them to. Due to the ever changing nature of life, we suggest that a will should not be overly specific as the sale or destruction of property may make the will useless or confusing. Your Will should also make provisions for the guardianship of your children should they be under the age of 18 when you pass away.

Your will must comply with strict guidelines set by the Probate Court. We are aware of “do-it-yourself” kits that are sold around the state. These kits may not always be made in South Australia and may not comply with all of the Probate Court’s requirements. Whilst you may save $200.00 now, you may also be causing your family and friends to spend thousands of dollars unnecessarily after you pass away. The Public Trustee can also help you prepare your will at little to no upfront cost. If you choose to utilise the Public trustee’s services we recommend that you enquire about their fees for administering your estate.

Once you have made your Will the original must be kept in pristine condition. We will keep a copy of your will in any event; however, we can also store the original for no extra cost. In the event that you wish to keep your original Will, we recommend keeping it in a safe deposit box at a bank or other reputable institution.

If your personal circumstances change eg you become married or divorced, have children, travel or acquire new assets, you are advised to make changes to your Will. If you get married, the existing Wills of both parties are automatically revoked, unless made in contemplation of marriage. It is important to note that divorce or annulment of marriage does not automatically revoke your Will. You should update your will after marriage, divorce or if you are living in a de facto relationship.

How Much Does it Cost?

A single standard Will 
$250 (inc GST)

A single Enduring Power of Attorney
$150 (inc. GST)

A single Advanced Care Directive
$150 (inc GST)

A single standard Will and Advanced Care Directive or Enduring Power of Attorney
$325 (inc GST)

A single standard Will and Advanced Care Directive and Enduring Power of Attorney
$400 (inc GST)

 

Mirror Wills (2 standard Wills which are largely identical)
$350 (inc GST)

Mirror Enduring Power of Attorneys
$225 (inc GST)

Mirror Advanced Care Directives
$225 (inc GST)

Mirror Wills and Mirror Advanced Care Directives or Mirror Enduring Power of Attorneys
$475 (inc GST)

Mirror Wills and Mirror Advanced Care Directives and Mirror Enduring Power of Attorneys
$575 (inc GST)

What is Probate?

When a person dies leaving a Will, certain procedures have to be undertaken before that person’s wishes can be carried out.

Usually a grant of probate (registering of the Will by the Supreme Court) is required so that the assets of the estate may be collected for the beneficiaries. Small estates can sometimes be distributed without a grant of probate but large amounts of money and assets such as land cannot be transferred or sold without a grant of probate. If a Will is defective or is challenged, it may not be possible to obtain probate of it.

Once Probate is granted it is then up to the Executor(s) of the Will to administer the estate in accordance with the wishes of the deceased.

 


It is important to note that if a house is owned jointly by two people, and one dies, the house may automatically belong to the survivor. This cannot be changed by will.

What happens if there is no Will?

If you pass away without a Will, your loved ones won’t be left with any formal instructions to determine what happens with your estate. It is far from an ideal situation, but it’s far more common than you think.

What Happens to My Estate if I Don’t Have a Valid Will?

If there is no Will to follow (or the Will is invalidated) then the estate is distributed in the order set out in Part 3A of the Administration and Probate Act 1919 (SA) known as the statutory order. The Court cannot take any notice of any wishes of the deceased that are not expressed in a valid Will.

Other than not having a Will, the following could cause a person to die intestate:

  • the inadvertent revocation of a Will, for example, by a subsequent marriage
  • the loss of the original Will by the Will-maker
  • the existence of a Will signed by a person who did not have the capacity to understand what they were doing, or
  • failing to prepare a Will properly. This might be caused by not having the document correctly witnessed or forgetting to sign the document.

Once it has been determined that there is no valid Will an application needs to be made to the Court seeking an Order to appoint an administrator of the estate. This is known as an Application for Letters of Administration. The administrator has a similar role to an executor in that it is their responsibility to handle and disperse the estate.

The person who applies to be the administrator is usually the person with the greatest entitlement to the estate. For example, if a spouse or partner survives the deceased, they would usually bring the application. If the deceased is survived by children (and no spouse) then one or more of them could apply. A dispute can arise at this point if there are multiple people who wish to be appointed as administrator. This dispute will need to be sorted out before the administration of the estate can commence.

Are There Any Disadvantages to the Intestacy Process?

Dying without a Will creates uncertainty and is more likely to result in a dispute. It can cause delay and additional expense if those left behind argue about who is to be appointed as the administrator and whether or not the intestate distribution adequately provides for those people closest to the deceased.

If you or someone you know is dealing with an intestate estate or a dispute caused by an intestate estate, legal advice should be sought to try and resolve the issues as quickly as possible.

Will Getting Married or Divorced Affect My Will?

It seems like every week someone is getting married and at just the same rate someone is getting divorced. Getting married and divorced are big life milestones and will both will have a huge effect your future.

Getting married will not only change your life, it will automatically revoke your Will (unless you expressly stated otherwise within the Will). If you fail to update your Will after getting married, you will have no control over how your assets are disbursed after you pass away.

Instead of following your wishes your loved ones will be forced to follow the legislative directions set out by the Government. Unfortunately, when using this method most of your loved ones will feel that they were not properly provided for and may decide to launch costly legal action in order to receive their ‘fair share’.

Even if you are not married; but have been in a long term de facto relationship, you should consider changing your Will in order to provide for your partner.

On the flip side, divorce does not invalidate your Will. It will, however revoke the parts of your Will which provide for your former spouse or appoint them as an Executor. However it should be noted, during the period of separation which occurs prior to divorce or separation from a de facto spouse does not have an effect on your Will. During property settlement proceedings your ex-spouse will retain entitlement to your estate over your children or relatives.

You should update your Will as soon as possible after separation to obtain peace of mind that your estate will not be left vulnerable to distribution that does not reflect your wishes. Furthermore, it will save your loved ones the stress, hardship and expense of engaging legal assistance in order to claim their entitlements. At Mantzoros & Partners Lawyers we have experienced Wills and Estates lawyers who will work with you to ensure your wishes are fulfilled. 

Why Should I Make (or Update) a Will?

No one really wants to contemplate death, so we often put off drafting a Will. However, it is important to plan ahead and take the stress of dealing with death and inheritance away from your loved ones.

When you make a legal Will, you get to decide how to divide your estate between any of family, friends and charities, and you can appoint your chosen executor to administer your estate. You can also appoint a guardian for your children.

There is often a perception that if you don’t own much, you don’t need a Will, but this is not necessarily the case. There are other extremely important functions of a Will, including nominating guardians for any dependents, confirming funeral arrangements and appointing the Will’s executors.

Creating a valid Will gives you control over how your estate is distributed and simplifies the administration of your estate. You may want a certain family member to inherit specific items or you may want to allocate an inheritance to children from previous relationships, and you can also distribute items of sentimental or emotional importance.

The best way to think of a Will as a gift you leave to your family and loved ones, reducing their stress and making the management of your estate easy and clear.

What happens if I die without a Will?

Even if you do not believe you have much property to leave to your beneficiaries, you should make a legal Will. If you die without a valid Will (known as dying intestate), a standard formula is used to distribute your property. This will usually mean that all of your assets will pass to your spouse or children, but the situation can become complicated.

By making a Will and taking control of these decisions you can secure your family’s financial future.

Why is it important to get help with a Will?

It is generally advisable to seek legal advice about drafting a Will, this is due to the fact that the law around Wills can be complex. Seeking proper, informed legal advice will assist you in expressing your intentions clearly and avoiding unnecessary tax liabilities, and will likely reduce the chance that the Will may be contested.

Because life changes

As your circumstances change, you will likely need to update your Will. It is important that you update the document in the following circumstances:

  • when there are births, deaths, marriages and divorces in the family, particularly if any executors/s or beneficiaries die;
  • if you change your name;
  • when there is a purchase or sale of a significant asset; or
  • if there is an inheritance or significant change to your financial circumstances.

Take the time to draft a Will so that your family and loved ones are protected and the executor can easily administer your estate. Contact Mantzoros & Partners Lawyers today on 08 8396 3143 to discuss making or updating your Will.

Administering an Intestate Estate

If a person dies without leaving a Will to follow then the estate is distributed in the order set out in Part 3A of the Administration and Probate Act 1919 (SA) known as the statutory order. The Court cannot take any notice of any wishes of the deceased that are not expressed in a will. The method of dividing an intestate estate under the Statutory Order is set out below.

Spouse Only

If the deceased leaves a spouse and no children, the whole of the estate passes to the spouse. A spouse may be either a lawful spouse or a domestic partner, but not a divorced spouse. However, when the deceased leaves a spouse (not including a divorced spouse) and domestic partner, each is entitled to an equal share of the property, including any personal belongings of the deceased, that would have gone to a sole spouse or domestic partner.

Children and Spouse

If the deceased leaves a spouse or domestic partner and children the estate will be distributed on the following basis: 

Estates less than $100,000

The spouse or domestic partner will be entitled to:

  • The whole estate, including personal belongings of the deceased (such as jewelry, household furniture, cars)

Estates more than $100,000

The spouse or domestic partner will be entitled to:

  • Up to the sum of $100 000, and
  • Half of the balance of the estate, plus
  • The personal belongings of the deceased

The children of the deceased will subsequently be entitled to:

  • The balance of the estate in equal shares

If the deceased and her/his spouse or domestic partner die within twenty eight days of each other it is taken that the spouse or domestic partner did not survive the deceased, and the estate is distributed as though there was no spouse or domestic partner.

If an intestate person who owned a house in her or his sole name is survived by a spouse and children, and the spouse was living in the house at the time of the death, the spouse has the right to live in the house for three months and is also entitled to buy the house within the same time.

Children Only

Where there is no surviving spouse or domestic partner but there are surviving children of the deceased, those children receive equal shares of the estate. Grandchildren (by a child who has died before the deceased) take their deceased parent’s share divided equally amongst them. But if the dead child was childless, that dead child’s share is divided amongst the deceased’s other children.

How Do I Make a Valid Will?

What is a Will?

A Will is a legal document that sets out how your property and possessions are to be divided after your death. Creating a valid Will places you in the best position to ensure that your assets are distributed in accordance with your wishes.

Who you give your assets to is your decision; however, you do have a general obligation to provide adequately for your spouse or de facto partner, your children and any other dependents. If you fail to provide for them in your Will, they may be able to bring a claim against your estate.

How do I create a valid Will?

The first step you should take is to consult with a lawyer with expertise in Wills and estates. A lawyer can assist you to ensure that your wishes are clearly expressed and that your Will is valid according to law.

Many people choose an online or DIY ‘will kit’; however, when using these options it can be difficult to know whether you have included all the necessary information and details in your Will. Further, many of these ‘will kits’ do not give full and proper instructions which may result in you failing to properly execute the Will to make it legally enforceable. In addition, you also won’t receive the benefit of legal advice about the manner in which you have chosen to distribute your assets and any risks associated with your decisions.

The laws governing the legal requirements for preparing a valid legal Will in Australia vary from state to state; however, in all states, for a Will to be valid, there are some basic requirements:

  1. You must have testamentary capacity, which means that you must be over 18 years old and understand what you are doing.
  2. Your Will should be in writing (whether handwritten, typed or printed).
  3. Your Will must be signed, and two witnesses (over the age of 18) need to witness your signature.
  4. Those witnesses must also sign the Will.

The information needed to create your Will is likely to include:

  • names and details of your chosen beneficiaries
  • names and details of your executor/s and/or trustee/s
  • details of the allocation and division of your property and possessions, and
  • details of any guardianship clauses for children.

There’s no need to file it with any particular organisation, but once you’ve signed it, make sure you keep it in a safe and accessible place.

What is an Executor and/or Trustee?

When you make a Will, you will need to appoint an executor to look after and disperse your estate in accordance with your Will when you die. The executor must:

  • collect all your assets
  • pay all your debts, and
  • distribute your estate in accordance with your Will.

A trustee (this can be the same person as the executor) is often appointed to administer any trusts set up in the Will; this scenario usually occurs when you leave assets to people under the age of 18.

When choosing an executor or trustee (and you may choose more than one), you should ensure that they are comfortable taking on the responsibility and performing the role. It is recommended that you appoint someone younger than you, or nominate reserve executors/trustees, in case the people you have appointed die before you do.

It is important to remember that as your circumstances change your Will should be updated to reflect important life events, such as: marriage, divorce, having children, buying a house, and even winning the lottery.

The most important thing you can do is get the process started. Contact Mantzoros & Partners Lawyers today on 08 8396 3143 to arrange an appointment to make or update your Will.

Contesting a Will

If you’re thinking about contesting a Will, you probably have a lot of questions about how it works, whether you’ll have to go to court and what sort of outcome you can expect.

In most cases Will disputes settle out of court quickly and efficiently. This means that the details of your family dispute can be kept private.

What is probate?

Understanding probate is important when contemplating challenging a Will.  Probate is the process of lodging a Will with the Supreme Court and asking the court to make an order that the Will is valid.

If you want to challenge the content of the Will (for example, you are unhappy with what the Will says because it doesn’t adequately provide for you) then you need to wait for probate to be granted before bringing your challenge.

However, if your dispute relates to the validity of the Will itself (because you don’t think the Will-maker understood what they were doing or because you think the Will was the result of undue influence) then you must bring your challenge before probate is granted. Once probate is granted, the Will is assumed to be valid.

Who can contest a Will?

In order to challenge a Will because you have been left out or because you are not happy with the size of your gift, you need to show that you are eligible to bring a challenge. You will need to that you had a close and significant relationship with the deceased, and that you were not adequately provided for in the Will.

In some circumstances you may still be able to challenge the Will even if you were estranged from the deceased. However, not everyone can challenge a Will. Most challenges are made by children and partners of the deceased; if you are not a child or partner of the deceased then you should seek legal advice about whether your circumstances make you eligible to bring a challenge.

When to contest a Will?

Even though a person has the legal right to choose who to leave their assets to, there are situations where the Will-maker’s wishes can be challenged. These include where:

  • You are left out of the Will completely
  • You think your gift is too small
  • You do not think that it is the last Will
  • The Will was not prepared correctly
  • There is no Will and you are not happy with the way the law distributes the estate
  • The Will was prepared under pressure, bullying or harassment
  • Someone has tampered with the Will.

If you decide to contest a Will, you need to lodge an application with the Court within the required time frame. In South Australia the time frame is within six (6) months of the grant of Probate. It is a good idea to seek legal advice at this point because the law surrounding Will disputes can be complex and the time limits for bringing your challenge differ from state to state. Seeking legal advice early on in the process can also help you understand the laws that apply to the Will that you want to challenge.

Will I have to go to court?

Your claim will probably have to be filed in the Supreme Court; however, most Will disputes are actually settled out of court. This means that it is unlikely that you will have to appear at a trial.

We encourage our clients to seek alternative dispute resolutions, such as negotiations and mediations rather than pursuing the matter through the Courts. Going to court can be costly, stressful and time-consuming and may not always lead to the outcome you want. Going to court should always be the last resort.

Out-of-court settlements save time, stress and money. Resolving your dispute out of court also gives you far more control over the case and the outcome. The negotiations also allow everyone’s point of view to be heard in a less formal setting. This can sometimes help reduce tension or emotional distress between disputing parties. What’s more, it’s all done behind closed doors, so you won’t need to air any dirty laundry in the courtroom.

Will I be successful?

When the considering a claim for further provision the following factors are relevant:

  • The nature of your relationship with the deceased.
  • How long you knew them.
  • Whether they had any responsibility towards you.
  • How much you earn and what your financial needs are.
  • If you made any contributions to the welfare or estate of the deceased.
  • Personal details, like your age and general behaviour toward the deceased.

The above factors and many others will all be considered when making a claim. You will have to show why you feel that you are entitled to a greater share of the estate, in some cases (such as a child being completely left out of the Will) this may be quite easy; however in many cases it can be difficult.

All you really need to know before you challenge the Will is whether you have a case. To help you figure this out, call Mantzoros & Partners on 08 8396 3143 so we can help you understand your legal rights and get the best possible result.

What Happens to My Pets When I Die?

Our pets are part of the family, so it’s not unusual to worry about what might become of them after we die.

More than half of Australian households have pets, however pets are not always considered when making a Will. More often than not, though, people want to preserve the life of their pet and to set aside a financial arrangement to help with this.

Gifting your pet to a friend or family member

In Australia, animals are property, and like other property, you can gift a pet to someone. Whether or not that person wants the gift is another story. If you leave your animal to someone without telling them, it is possible that they decline the gift.

The ideal scenario is to have a conversation ahead of time to make sure the person you intend leaving your animal to is happy to take the animal. After all, it is a huge responsibility to adopt a pet.

Often, the person who receives the pet is left a conditional legacy (sum of money) to cover the pet’s expenses.

Setting up your pet at a legacy program

Another option is taking advantage of animal welfare agency legacy programs. Similar to gifting your pet to a person, you can gift a sum of money to the animal welfare agency of your choice that is used to rehouse or care for your animal. The RSPCA, for example, offers a Bequest Animal Program that allows pet owners to make a gift for the life-long care of their animal.

Taking care of finances and insurance

By law, pets can’t inherit money, but you can create a trust for them in your will.  The money in the trust can be used to pay for their care and day to day expenses in accordance with the wishes you leave. You will need to nominate a trustee to look after the funds. This might be your executor but it can be someone else. The clause should also say where the balance of the trust goes when the pet dies.

Call us on 08 8396 3143 or email us to discuss your future planning needs.