Succession Lawyers | Greyson Legal
Greyson Legal are a boutique Queensland law firm offering Wills and estates legal services across a number of succession law areas, including: Wills, Enduring Powers of Attorney, Advance Health Directives, Testamentary Trusts, Business succession planning, application for grants of probate, applications for letters of administration and general estates law advice.
Even if you have previously prepared a Will or Enduring Power of Attorney it may no longer be up to date or valid. Subsequent life events can mean those documents are either out of date or invalid. For example, if you have since married, re-married, separated or divorced; had a child; or a beneficiary has died - your Will and Enduring Power of Attorney may need to be re-drafted to reflect your current circumstances.
We can help:
- you draft a Will to record your final wishes and how you would like them to be carried out;
- you prepare an Enduring Power of Attorney to appoint someone you trust to look after your financial affairs and wellbeing if you become incapable;
- your executor file an application for a grant ofprobate in the event of your death allowing them to manage your estate for the benefit of your beneficiaries;
- you with advice about estates law or business succession planning.
We have connections with other professionals, such as:- accountants and financial planners, whom we can refer you to for additional support and guidance.
No matter how straightforward or complicated your estate is, Greyson Legal can help you.
Get in touch with us
Our Estate Planning Clients
At Greyson Legal we adapt our legal services to match the needs of our clients. We act for clients across a broad spectrum, from pensioners to small business owners to high wealth individuals.
No matter what your estate planning needs are, we are confident we can provide you with expert legal advice and assistance and, where required,direct you to other professionals, such as, financial planners to help you put your estate plan into practice.
We offer a range of fixed fee succession law services. There are no nasty costs surprises when you engage Greyson Legal to assist you.
We provide an upfront written quote so you know in advance what your legal fees will be.
How we Deliver our Legal Services
We understand that it is not always practical to attend a solicitor's office. As a result, Greyson Legal provides the additional flexibility of:
- meeting with you at your homes, place of business or other agreed location; and/or
- communicating with you by phone, mail, email and teleconference.
At Greyson Legal we can help you with:
- Wills advice;
- drafting basic Wills;
- preparing more complex Wills;
- Testamentary Trusts;
- Special Disability Trust Wills;
- Protective Trust Wills;
- Testamentary Wishes.
Making a Will
With our busy lives, sometimes things that we know we should be attending to just get pushed back, adopting the attitude, "I'll get to it". This is certainly true for many people who either put off having a Will prepared or where there is a change in personal circumstances they hold off updating their Wills.
This is equally true for small business owners who are often juggling many hats at the same time and just don't give sufficient time and consideration to issues around business succession planning.
A Will is your way of explaining what you’d like done with your estate and other related matters when you die. Without having a properly prepared and current Will in place, you risk your wishes not being followed.
What is a Will
A Will is a legal document that explains what you’d like to happen with your estate when you die.
It helps to protect your estate assets for the benefit of your nominated beneficiaries. A Will also enables you to give directions in regards to other matters, such as, appointing an executor and/or guardian for your children.
Who Can Make a Will
Generally, anyone over 18 years of age with legal capacity can make a Will.
Things to consider when making a Will
Wills can take various forms from the more basic to the complex. Each person’s particular circumstances and wishes will govern the complexity of the Will.
Some of the matters to consider when having a Will prepared include:
- Testamentary Capacity - does the Will maker understand the nature and effect of the Will ?
- Executors - an executor is a person who a Will maker appoints in their Will to carry out the directions in the Will;
- Beneficiaries - a beneficiary is a person who receives a gift or benefit from the Will maker’s estate;
- Excluding Beneficiaries - a decision by the Will maker to exclude a family member from an entitlement under a Will can result in the Will being challenged - this depends on the circumstances and legal advice should be obtained before excluding people from a Will;
- Beneficiaries with special needs - if you have a disabled child or family member, you could consider a Special Disability Trust ("SDT") or Testamentary Trust;
- Vulnerable Beneficiaries - a beneficiary who might be vulnerable to the negative influence of others or has issues with alcoholism, drug abuse or gambling may need a Protective Trust Will;
- Specific and non-specific gifts - are the gift(s) to be in the form of money, a specifically identified item or a proportion of the residuary estate;
- Testamentary Guardians - for example, a parent (as Will maker) can include provisions in their Will appointing a person (or persons) as Testamentary Guardian of their children under 18 years of age;
- Superannuation - superannuation benefits do not automatically go to beneficiaries set out in a Will;
- Life Insurance - life insurance death benefits do not automatically go to beneficiaries set out in a Will;
- Joint Tenancy - in a joint tenancy, any interest automatically passes to the surviving joint tenant upon death, irrespective of the terms of a Will;
- Organ Donation - although a provision can be inserted into a Will regarding organ donation, it is preferable to have pre-registered as an organ donor. Here is a web-link for more details: https://register.donatelife.gov.au/decide
- Funeral Directions - we recommend including funeral instructions in your Will to ensure that those close to you and the executor, are aware of your wishes;
- Companies - assets owned by companies controlled by the Will maker will not become part of their estate;
- Discretionary Trusts - generally, assets owned by discretionary trusts do not become part of the Will maker's estate.
Each individual circumstance will dictate what matters should be covered in the Will. We recommend appropriate legal advice be obtained when preparing your Will.
ENDURING POWER OF ATTORNEY
What is a Power of Attorney
A power of attorney is the legal power to make decisions on someone else’s behalf. ‘Enduring’ means that the power continues if the person giving it loses the capacity to make decisions.
What Types of Power Can be Given
Generally, you (as "Principal") may give your attorney power to make decisions about:
- Personal/health matters; and
- Financial/property matters.
For example, an attorney can be given powers to:
- assist with your day-to-day finances
- manage your bills
- manage your property
- arrange for your tax returns to be completed
- assist with your care and welfare, including your health care.
Restrictions on Powers
There are some restrictions on the powers that can be exercised by an attorney. For example, an attorney cannot make decisions on behalf of a Principal relating to:
- voting at elections;
- consenting to adoption;
- consenting to marriage;
- what are called "special health matters".
A Principal can limit the attorney's powers, such as, specifying decisions that they do not want their attorney to make.
Who Should I Appoint as an Attorney
As an EPOA is a legal document that potentially gives the attorney considerable power over your assets and the ability to make personal decisions about your health care, it is important to choose your attorney(s) carefully.
Generally, your attorney should be:
- someone you trust;
- willing to take on the responsibility;
- mentally capable themselves;
- 18 years of age or older;
- able to understand the role of attorney and can competently undertake that role.
Often an attorney is a family member or close friend, but professionals can also be appointed to act as attorneys.
How Many Attorney can be Appointed
It is possible to appoint more than one attorney. Multiple attorneys could be appointed to act either unanimously (jointly), by a majority, successively in a particular order, or severally.
When Should I Prepare an Enduring Power of Attorney (EPOA)
The time to prepare a power of attorney is when you have capacity.
If you don’t have an EPOA already in place, and you suffer a serious accident or illness:
- it may be too late to appoint someone to act on your behalf;
- your wishes as to who should act for you may not be understood or followed;
- it may lead to family arguments and additional stress for your family;
- it may result in delays regarding important decisions to be made.
Contact Greyson Legal now to make an Enduring Power of Attorney.
You can change or revoke a power of attorney at any time as long as you have capacity to do so.
Various events may also cause the EPOA, or the powers of a particular attorney, to an end. For example, the power will no longer be effective when you die or the attorney dies.
Testamentary Trust Wills
In essence, a Testamentary Trust Will is where one or more trusts are set up within a Testator’s Will. It comes into effect on the death of the Will maker.
The terms of the Will include the appointment of a trustee for each trust.
The trustee can be given discretion in relation to the distribution of the estate assets and income among the beneficiaries of the trust. This has advantages in respect of taxation and asset protection.
Ideally, following the death of the Will maker the trustee of a trust established under a Testamentary Trust Will would consult with their solicitor, accountant and financial planner at that time to get advice on how best to deal with the proceeds received from the deceased estate.
Intestacy and Deceased Estates
If you don't have a valid Will or you die without leaving a Will, you are said to have died intestate. In Queensland, the Succession Act 1981 (Qld) provides a statutory process for dealing with intestacy and determining who will benefit from your estate.
Intestacy can mean that people whom you wanted to obtain a benefit from your estate miss out altogether or only receive a portion of what you may have initially intended.
Where someone dies intestate, a grant of letters of administration on intestacy must be handed down by a Court before an administrator can be appointed to start administering the deceased's estate.
ADVANCE HEALTH DIRECTIVES
An Advance Health Directive (AHD) is sometimes called a living Will.
It allows you to state your wishes or directions regarding your future health care in respect of various medical conditions.
The AHD only comes into effect if you are unable to make your own decisions.
An Enduring Power of Attorney cannot deal with “special health matters”, being matters which relate to the special health care of the Principal, such as, participation by the Principal in special medical research or experimental health care.
If you wish to give directions about special health matters or issues like withdrawing or withholding of life-sustaining medical treatment, you will need an Advance Health Directive.
A doctor also needs to be involved in the process of preparing an AHD.
If you would like more information about Advance Health Directives or would like one prepared for you, please contact Greyson Legal.
When a Will maker dies, an application may be made to the Supreme Court to register and validate or prove the Will is valid. This process is called seeking a grant of Probate. A grant is a Supreme Court document that recognises that the person seeking the grant is authorised to deal with the estate of the deceased person.
There are a number of prescribed forms and statutory and regulator steps that need to carried out in order to be successful in being granted probate and in regards to the administration of the deceased's estate.
Typically the application for a grant of Probate is made by the executor under the Will. Often the executor engages a solicitor to assist with this process.
It is not always necessary to seek a grant of Probate. This might occur if the value of the estate is small or the estate is less complicated. However, even in these situations third parties (such as, banks) may still request the executor prove they are authorised to administer the estate before the bank will release any funds held by the deceased in their bank accounts.
The area of law that deals with Wills and probate can be complex requiring legal advice. Greyson Legal are familiar with the probate and estate administration process. Contact us for more information on how we can help with this process.
Not all property which is owned or associated with the Will maker forms part of their estate to be administered by their executor.
Below are some examples of property which may not fall within the Will Maker's estate to be distributed in accordance with their Will:
- joint tenancy in a home;
- superannuation interests;
- life insurance death benefits;
- assets owned by a company of which the Will maker was a director.
Advice should be obtained from lawyers experienced in Wills and estates law when these types of assets exist.
ON-LINE WILLS AND DIY WILL KITS
There are a number of DIY Will Kits available at places like newsagents or on-line. Although these are certainly cheaper than using a lawyer, you should bear in mind On-Line Wills and DIY Will Kits:
- deal with very simple situations only;
- there are differences between each type of Will Kit - meaning some kits are better than others;
- the instructions in the Will Kits may be very limited;
- if you make a mistake it could drastically affect your testamentary intentions or invalidate the Will.
Given a Will is a legal document and each persons circumstances are different we do not recommend using an On-Line Will or DIY Will Kit. You are best placed getting help from a lawyer.