Wills, Trusts & Estates

Wills

By making a will you are saying whom you want to get your property and possessions (your 'estate') when you die. If you do not have a will then in that event an act of parliament will decide who gets your estate.

Power of Attorney

If you give another person your 'power of attorney', it simply means that you give that 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.

Enduring Power of Attorney

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.

Medical Power of Attorney and Power of Guardianship

You can also elect to appoint someone to make medical and personal decisions on your behalf in the event that you become unable to make those decisions for yourself. To do so you must be of sound mind.

Testamentary Trusts & Family Trusts

You can leave assets directly to another person through a will. Another increasingly popular strategy is using a trust. 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. When planning your estate you may wish to include a trust as part of the will - this is called a testamentary trust. The advantages may include:

maintaining social security entitlements;
ensuring that assets pass to children even if a surviving husband/wife remarries;
capital gains tax and income tax advantages;
providing for children with an intellectual disability or mental illness; and
protecting assets where a beneficiary becomes bankrupt.

Estate Planning

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 amount of your assets that are passed on after your death. Estate planning has two main aims:

to try and avoid the likelihood of any next of kin suffering financially; and
to minimise the risk of family squabbles about who gets what.

Examples of how estate planning could be useful are:

where you want to pass on a family business;
where you have a superannuation payout;
where you want to make a gift to a charity;
where you've got capital losses;
where you have property which may be caught by capital gains tax, i.e. it was purchased before 19 September 1985;
where you have life insurance;
where there are family debts; and
where you want flexibility in distributing your assets, for example, there are more children foreseeable or for tax purposes.

Estate Administration

Belperio Clark can assist in the administration of an estate, which may entail the following:

apply for "Probate" where the will is tested and considered legal and permission then given to have the estate administered;
sell or mortgage the real estate of a deceased person for purposes of administering the estate; pay the deceased person's debts or funeral expenses;
distribute the proceeds of the sale of real estate to beneficiaries under a will (or to people otherwise entitled to a share of an estate);
lease the real estate of the deceased person (usually for a term not exceeding three years.

Contact us to arrange an appointment with one of our lawyers. If our areas of practice do not seem to list or encompass your problem, we will quickly find out whether we can help you.