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  • Writer's pictureMolly Zhang / Sianne Way

WILLS & ESTATE PLANNING

Updated: Jan 18, 2023


Authored by: Molly Zhang SOLICITOR | +61 449 698 896 | molly.z@juliuslawyers.com.au Tarryn Wilson SENIOR ASSOCIATE | +61 415 911 948 | tarryn.w@juluislawyers.com.au


Wills and Estate Planning

Wills Act 1936 (SA)


Introduction

Having a valid, properly prepared Will that is up to date not only ensures that your assets are distributed in accordance with your wishes but will assist your loved ones to better manage the process of handling your assets in the event of your death, during what is already a very difficult time.

Having a Will made by an experienced solicitor will provide you with peace of mind that your assets will be distributed in accordance with your wishes, and will avoid unnecessary stress, delays, and costs to those who will be responsible for managing the administration of your estate following your death.

At LGee & Julius Lawyers we will properly prepare your Will, giving appropriate consideration to estate planning measures to ensure that your assets are distributed as you intend them to be, whilst being mindful of financial and tax considerations, incorporating asset protection strategies, and taking any necessary risk management measures.

Our solicitors are skilled in preparing customised Wills and other estate planning documents.


Register a Will

The Law Society of South Australia (“LSSA”) has developed an electronic database for the registration of the location and date of Wills held by South Australian legal practitioners or legal practices.


You may wish to request that your legal practitioner registers your Will with the LSSA, particularly if you have concerns that your Will may not be located after you die. For your Will to take effect, it must be presented in its original form to the Probate Registry after your death.

If your Will is unable to be found, you are considered to have died "intestate" (without a Will), in which case your property will be distributed according to South Australian intestacy laws as opposed to your personal directions within your Will. For example, if you would like for specific items of property to be left to certain persons, this will not happen if your Will cannot be found.


If you have registered your Will with the LSSA, an online search can be conducted (by your executor’s solicitor) to reveal which law firm has possession of your original Will.


Executor

Selecting who is to be your executor is a very important decision, which you requires careful consideration. It is common to list children, nieces, nephews and even your Solicitor or Accountant.


You can nominate single or multiple executors and change the executor/s at any point. If you nominate more than one executor, you can state whether you would like them to make decisions together (jointly), or separately (severally). It is important to note that the executor should be happy to be listed on your Will as an executor, as they are not obliged to fulfill this appointment in the event of your death. Nominating someone you trust is important, as they will be responsible for ensuring that your final wishes are given effect.


An executor is tasked with a range of responsibilities in respect of the administration of your estate and may require professional assistance in carrying out their duties if your estate is complicated, or if they do not have time to tend to these tasks. For example, some common responsibilities of an executor may include:


  • Locating your last Will

  • Contacting Beneficiaries listed in your Will

  • Notifying various organisations of your death

  • Applying for a Grant of Probate

  • Collating the assets of your estate and converting certain assets into liquid funds

  • Paying debts from your estate

  • Valuing the estate

  • Administering your estate (dividing your assets amongst the beneficiaries)


The duties which an executor is expected to carry out can be rather onerous. Accordingly, you may wish to nominate a professional who is experienced in completing these kinds of tasks to be your executor, as opposed to your loved ones. Doing so can relieve your loved ones of the burdens associated with administrating your estate, during what will already be a difficult time for them.


LGee & Julius Lawyers are experienced in estate administration and can act as your executor, should you choose to nominate us to fulfill this important role.


Probate and Letter of Administration

The administration of a deceased estate can be a highly complex process. Even if a person dies with a valid Will, a Grant of Probate by the Probate Registry of the Supreme Court is required before an estate can begin to be administered.

Where a person dies without a legally valid Will, this can pose even greater difficulties, as Letters of Administration will need to be obtained from the Public Trustee before an estate can begin to be administered.

Preparing an application for Probate, or applying for Letters of Administration, and subsequently completing the complex task of administering an estate can be a highly challenging process, with significant obligations being placed upon the Executor of an estate.

LGee & Julius Lawyers can alleviate the anxiety and pressures encountered by Executors in the administration of deceased estates, through assisting with the Probate application process, and by managing the administration of the estate on behalf of the Executor, including the collection and sale of all assets, and subsequent distribution of the proceeds to beneficiaries.


Power of Attorney

A Power of Attorney is a legal document which gives a person (or trustee organisation) the legal authority to make financial and legal decisions on your behalf, and to act for you to manage your assets.

There are two types of Power of Attorney documents, a General Power of Attorney, and an Enduring Power of Attorney.

A General Power of Attorney is a legal document which allows you to appoint a person or persons to manage financial and legal decisions on your behalf, whilst you have the ability to make your own decisions.

An Enduring Power of Attorney is a legal document which allows you to appoint a person or people to manage financial and legal decisions on your behalf, however this power will continue even if you lose the ability to make decisions for yourself.


Having a Power of Attorney is important in the event that you happen to suffer from any temporary or permanent loss of capacity due to illness, an injury, or a disability.

LGee & Julius Lawyers are experienced in the preparation of both General and Enduring Power of Attorneys and can ensure that your affairs will be managed in accordance with your instructions, in the event of incapacity.


Advance Care Directive

An Advance Care Directive allows you to appoint another person to make decisions about your health care and welfare if you become unable to make those decisions in the future. It allows you to set out your wishes for how and where you will live, and lets you nominate the types of medical treatments you may wish to have. If something does go wrong an Advance Care Directive will ensure you are being cared for in accordance with your own directions.

LGee & Julius Lawyers can assist with the preparation of your Advance Care Directive to provide you with peace of mind that in the event you become unable to make decisions concerning your health, welfare or medical treatment, such decisions will continue to be made in accordance with your own directions.

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