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Articles
By Pamela Wardle, Legal Practitioner Director
Under an enduring power of attorney, you may authorize your attorney to make two general types of decisions on your behalf. The first type has two branches: personal matters and health matters. Personal matters concern you and your personal wellbeing, such as where you live and with whom and who takes care of you on a day-to-day basis. Health matters are matters in which a health practitioner will usually request a decision, such as whether or not you are resuscitated, artificially hydrated or continue with life support. Your attorney cannot make decisions in personal and health matters unless you are unable to make those decisions for yourself. The second type includes financial matters, which means your attorney may deal with your bank accounts, shares, real property, government departments etc. It is important to remember that your enduring power of attorney does not automatically authorize your attorney to step into your role as a director or trustee. Your attorney can make decisions in financial matters from a time of your choosing (usually governed by your personal circumstances) and this power “endures” when you lose capacity to make decisions for yourself. You do not need to give your attorney the power to make all types of decisions nor do you need to appoint the same person for both types of decisions. Who to appoint as your enduring attorney under an enduring power of attorney can be a very complex decision. Make an appointment to see us to discuss the multitude of factors which may affect who you appoint and the decisions you allow them to make.
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By Pamela Wardle, Legal Practitioner Director
A Grant of Probate is a process where a deceased’s Will is submitted to the Supreme Court of Queensland to be proven as the last Will of that person and that the Executors are the correct people to administer the Estate. In Queensland, to obtain a Grant of Probate from the Court, the Executors must advertise in the Queensland Law Reporter and a local newspaper that they will be taking such action and serve a copy of that advertisement on the Public Trustee of Queensland. This advertising has a dual purpose: 1. it affords creditors an opportunity to notify the executors that the deceased owed money and for the debt to be repaid from the Estate before any funds are distributed to beneficiaries; and 2. it affords others an opportunity to put the executors on notice that: a. the Will advertised is not the latest Will; or b. the Will is deficient in another way, eg the executor did not have capacity or was influenced when the Will was made. A Grant of Probate will be required when a party notifies the executors that he or she intends to make a claim against the Estate or the Will is “attacked” in another way. However, a Grant of Probate may be required as part of the usual administration of the Estate where there are significant funds (eg often around $50,000.00) in the Estate in bank accounts, shares etc. Obtaining a Grant of Probate in an Estate can be a complex and confusing process. Please contact our office for further information in relation to Estates and the process of obtaining a Grant of Probate. By Pamela Wardle, Legal Practitioner Director
If you are considering making a Will or an Enduring Power of Attorney and need to appoint an executor or attorney, respectively, there are certain criteria that your executor or attorney must satisfy. Some of these are well known, such as your trustee must be over the age of 18. Others are less considered. A person cannot be your executor or attorney if: 1. they are incapable understanding the nature of the power you have given them or the nature of the decisions you will need them to make after your death or during your incapacity; 2. they are bankrupt or insolvent; or 3. they have died. This may seem obvious, but it may be relevant if you consider appointing someone who is elderly, very ill or in a high-risk situation. It is also important to ensure your executor or attorney is someone you can trust to carry out your wishes and look after your best interest. This not only means that your executor or attorney must be someone who will respect and honour your beliefs and desires as you state them in your Will or Enduring Power of Attorney (and have the stamina to fight for them) but your trustee or executor must be physically able to carry out your wishes (ie in a reasonable location or physically able to sign documents and attend to administrative matters). It is important to consider who to appoint as your executor or attorney very carefully because appointing an inappropriate person may be unexpectedly disappointing for you or those you love. By Pamela Wardle, Senior Solicitor
Many of us believe that we may distribute our assets as we wish upon our death. This is true but only to a limited extent. There are various occasions when we must consider carefully as to whom and how we distribute our assets. For example, if we choose to omit as a beneficiary under our Will a spouse, child or dependent, the omitted person may make a claim for further and better provision from our estate (called a testator’s family maintenance claim). The term spouse may include anyone to whom we are still married and not divorced (even though we may have been separated for a number of years) and de facto partners. Children include biological and adopted children but may also include step-children in certain circumstances. Even leaving a person a small amount under our Will is unlikely to be sufficient to avoid a testator’s family maintenance claim in most circumstances. The way we hold our assets may also influence to whom they are transferred upon our death. For example, if we hold anything as a joint tenant, the asset will go to the person with whom we hold the asset despite anything to the contrary in our Will. We have also previously written about superannuation entitlements and the necessity for being careful that we have a nomination for our entitlements which binds our superannuation fund. It is important to consider how and with whom we hold our assets and to whom we may have obligations after we die so we may ensure our assets can be distributed as we wish upon our death as much as is possible under the law. By Pamela Wardle, Senior Solicitor
Superannuation entitlements, particularly death benefits, (Entitlements) may constitute one of the largest assets you have upon your death. Therefore, it is important to understand how the trustee of your superannuation fund (Trustee) is likely to pay your Entitlements. The Trustee may pay your Entitlements to a spouse, a child, a financial dependent, a person with whom you have an interdependent relationship or your estate. You may notify the Trustee of your intentions for your Entitlements by submitting a written nomination but you must satisfy specific criteria for your nomination to be binding on the Trustee. For example, you must nominate specific people or groups of people and, for most funds, you must update the nomination every three years. If your nomination is binding, the Trustee must pay your Entitlements to the person or people you nominate. However, if you fail to satisfy the criteria, the Trustee may consider your nomination but may pay your Entitlements where it determines is most appropriate. Unfortunately, this payment is not often paid where you want or intend it to be paid. Contact your superannuation fund to obtain the specific requirements for your binding nomination or contact us for further information on your options regarding your Entitlements. |
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