Frank J. Horvat & Co
Wills & Estate Planning
Wills & Estate Planning
Every adult should think about preparing a Will and planning for unforeseen events. Even if you are young and healthy, a Will offers some protection against the unexpected. The need for a Will becomes especially pressing for people who have children or other dependents. In addition to having a Will, it is important to consider what might happen if you are incapacitated and need somebody you trust to step in and manage your affairs. We can assist with these important estate planning documents.
Preparing a Will
A valid Will records how you would like your assets dealt with after you die. It nominates an executor/s to manage your affairs and finalise your estate, with instructions on how your property should be divided between your beneficiaries.
A Will can also make arrangements for money to be held in trust to be used to care for children and vulnerable beneficiaries. Many parents use their Will to nominate a guardian to look after their children if the parents should pass away while the children are still minors. Your lawyer may recommend setting up a discretionary testamentary trust to help protect assets and vulnerable beneficiaries or work with your financial planner or accountant to implement strategies so that assets can be distributed in the most tax-effective way.
If you die without a valid Will, you die ‘intestate’, and the law sets out how your assets are distributed. The one-size-fits-all rules of intestacy will not suit everyone and, in any case, administering an intestate estate takes additional time, energy, and money from the family of the deceased, often when they can least afford it.
A Will must be correctly signed and witnessed, otherwise, there is a risk that it may be deemed invalid or contested after you die. Involving a lawyer to prepare your Will can help you avoid these pitfalls and ensure that the language and terms of your Will are clear and unambiguous.
Reviewing Your Will
Once you have a valid Will in place it’s not just a matter of ‘set and forget’. Certain changes in your personal or financial circumstances might mean you need to consider reviewing and possibly updating your Will. These include:
- the birth of a child
- separating from your spouse or de facto partner
- commencing a new domestic relationship
- the passing of a beneficiary or executor named in your Will
- selling or purchasing major assets including real estate
- starting or investing in a business venture
- receiving an inheritance or disposing of a major asset
- a change in your health circumstances
Powers of Attorney and Enduring Powers of Attorney
A power of attorney is a legal document that allows you (the principal) to appoint someone else (your attorney) to act on your behalf with respect to certain matters and in specified circumstances.
In Victoria, there are specific rules around the appointment of attorneys, and it is important to seek legal advice to ensure that the document is valid and legally binding. There are also different types of powers of attorney available and it is important to choose the right type for your situation.
A general power of attorney allows an individual to appoint an attorney to manage their financial affairs, such as paying bills, accessing bank accounts, and managing investments, while the principal is still capable. A supportive power of attorney may also be made for help with certain decisions.
An enduring power of attorney allows you to appoint someone to make personal decisions on your behalf (such as decisions about living arrangements), or financial decisions, or both, if you become incapacitated. This type of power of attorney is particularly useful for older adults or those with chronic illnesses who may need assistance in managing their affairs.
A power of attorney or enduring power of attorney can only be made by an individual if they have mental capacity. The attorney has a fiduciary responsibility to act in the best interests of the principal.
Knowing you have an attorney to act for you when you need it can give you peace of mind but requires careful consideration. We can explain the various options so you can make an informed decision and have documents prepared that are tailored to your needs.
If you need assistance, contact one of our lawyers at [email protected] or call 03 9300 1077 for expert legal advice.