Hazel Todd 24/05/2023 Hazel Todd 24/05/2023

Contesting A Will – What Information am I Required to Release?

How you you go about contesting a Will?

Are thinking about challenging a will with a Family Provision Claim (FPC)? Rest assured that your lawyer can assess and prepare your case, but what information do they need? This article will provide an overview of the details required for an applicant to bring an FPC.

Setting out your case

The initiation of an FPC comes with the requirement to give the executor an affidavit. This affidavit is a written version of what would be said in court, it stands as your proof for any claims. Essentially, the document serves as a representation of oral evidence.

Eligibility

It is important to demonstrate your eligibility to bring a FPC when making a claim. To be eligible, you must be a spouse, de-facto spouse, child, step-child or a dependent of the deceased. You must also demonstrate that you do not receive adequate provision under the will (or on intestacy). Other people who may be eligible to bring an FPA include any other beneficiaries named in the will, or any of the deceased's next-of-kin, such as siblings or parents.

Who are the potential beneficiaries?

In addition, anyone with an interest in the deceased's estate, such as beneficiaries, should be disclosed in your affidavit. Along with providing your and your spouse's assets, liabilities, and sources of income, you should include documentary evidence, such as bank statements, share statements, title searches, and tax assessments. This Online will help ensure that your affidavit is comprehensive and accurate.

HazeLegal can help you prepare your affidavit. To ensure you have the best chance of success with your case, it is important to give your lawyer all the relevant information to draft your affidavit. This includes providing details such as:

Details about your relationship with the deceased (including conduct by either party which could have affected the deceased’s views about that relationship);
Evidence that you are an eligible applicant (e.g. birth certificate, marriage certificate or for de facto spouses, documents evidencing the relationship);
Background information about the deceased’s family;
Details of any contributions you have made to the building up of the deceased’s estate or to the welfare of the deceased (e.g. working in a family business for less than market rate, providing free labour to improve assets, assisting the deceased with chores which otherwise the deceased would have paid for etc);
Your and your spouse’s financial position including details of your assets, liabilities and income;
Your financial needs and obligations now and into the future (e.g. medical costs, housing costs etc);
Your ability to meet your financial needs and obligations;
Any physical, intellectual or mental conditions you or your family suffer from;
Information about any competing claims (e.g. the financial position and circumstances of the beneficiaries); and
By providing this information to your lawyer, they can ensure that your affidavit is accurate and complete, and that your case is properly prepared.

Getting good advice early on about bringing or defending a Family Provision Claim can make all the difference. Don't hesitate to call HazeLegal if you need advice on such matters – it could be the best decision you make.

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Disclaimer:

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer at http://hazelegal.com.au Please note that we do not endorse any of the services mentioned in this article, they merely serve as an example.

Hazel Todd 17/05/2023 Hazel Todd 17/05/2023

Do you have Children Living in a Foreign Country?

Could your Kids be charged Death Duty on their inheritance in a foreign Country

Do you have children living overseas? If so, have you discussed the potential tax and Foreign Investment Review Board (FIRB) impacts on your estate with your estate planning lawyer? It is important to ensure your estate is structured in a way that will minimize any potential tax or FIRB implications for your family. Taking the time to consider these potential impacts now can help you ensure that your family is best prepared for the future.

Tax Implications

Creating an estate plan should be a top priority for everyone, as it is important to ensure that the right assets are passed on to the right individuals at the right time - and in the most tax and cost-effective way possible. With this friendly reminder, let's make sure that our estate plans are up-to-date and in line with our wishes.

When dealing with a beneficiary who lives overseas, there are two key issues that should be considered: the Capital Gains Tax (CGT) event 'K3' and the FIRB regime. Fortunately, the simplest solution for both of these issues is the same - the best asset to give to a beneficiary living overseas is cash. This can be easily achieved in an estate, as long as all the necessary factors are taken into account.

Foreign Beneficiaries

Ensure your children living overseas can benefit from their share of your estate by providing them with flexibility. Give them the gift of choice and provide them with the freedom to decide how their inheritance is invested, used, and distributed in a way that works best for them. Make sure they can take advantage of the greatest assistance you can give them: the flexibility to make their own decisions about their future.

Types of Gifts

With your Online will, you can pass your estate to your beneficiaries in two ways:

1. Direct Gift - This is the traditional and most popular way to gift property or assets to a beneficiary. For example, "I give my shares in ABC Pty Ltd to Dean”.

2. Testamentary Discretionary Trust – For example, The Dean Estate Trust is a testamentary trust established under your will for the benefit of Dean and her family. For example “I give my shares in ABC Pty Ltd to the Dean Estate Trust”. This trust provides long-term financial security and peace of mind by protecting the primary beneficiary and their family's interests. With the Dean Estate Trust, you can be sure that your loved ones will be provided for both now and in the future.

Changing circumstances

It is impossible to know your children’s circumstances at the time of your death. Which of the above gifting options (i.e. direct gift or a testamentary discretionary trust) works best for your children will depend on the assets of the estate, the child’s living situation and personal circumstances at the relevant time. Often the key to future planning is flexibility.

CGT EVENT K3 – In summary, when an estate asset passes to a foreign resident, it is treated as a disposal and the estate is required to pay capital gains tax. If the estate is liable for this tax, there must be sufficient cash available to cover the liability. This should be taken into account when considering the estate's liabilities, both fortuitously and carefully.

FIRB ISSUES – There are a variety of solutions available to those looking to transfer property to a foreign resident beneficiary. These include applying for FIRB approval and paying the relevant application fee (which can be costly). Alternatives such as gifting other assets in place of the property, or selling the property and gifting the remaining cash (after tax) to the foreign resident beneficiary, can also be explored. Ultimately, the best solution depends on the agreement between the involved beneficiaries.

For foreign residents, the new regulations mean that acquiring an interest in Australian property gifted to them under a Will now requires FIRB approval. However, there are some specific exemptions that should be noted. Australian citizens, for example, do not need FIRB approval when acquiring Australian land but may require it for other property, such as businesses and entities. It is important to understand these exemptions and seek appropriate advice when making transactions involving foreign residents and Australian property.

For a FIRB application, the fee should typically be paid by the beneficiary receiving the property. There is, however, a chance that FIRB approval may not be granted. To ensure that all outcomes are taken into consideration, it is important to have a well-drafted Will in place. This will provide the necessary security for all parties involved.

What you can do

A Testamentary Trust can eliminate many of the issues that arise when faced with how to protect the assets for foreign beneficiaries, from Capital Gains Tax to foreign Death Duties or Taxes.

Download the FREE Guide to Testamentary Trusts and Why you Absolutely Need One to protect your family and hard earned assets. Why let the tax man get your money instead?

At Webwills, powered by HazeLegal, we provide our clients with greater flexibility in their estate plans through the use of testamentary discretionary trusts which have an ‘opt-out’ option. This means that the children of the estate, even if they are living overseas, are given the choice to either accept their share of the estate directly or through the trust or a combination of the two. With this, they can make an informed decision at the time of their inheritance.

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Hazel Todd 10/05/2023 Hazel Todd 10/05/2023

Why You Should Create a Power of Attorney Now!

Why is is SO important that you have a Power of Attorney

Should you lack the capacity to make decisions, and no enduring power of attorney is in place, it will be impossible for you to designate someone to manage your financial and personal affairs. This could result in an individual you are not fond of, or even a complete stranger taking charge of your decisions.

Thus, it is essential to recognize what a power of attorney entails and why you should create one now, as you never know what the future holds.

What is a Power of Attorney?

Considering the authority of your chosen power of attorney over your matters and any possibility they may not always act in your favor, it is understandable that one would wonder what the benefit of setting up a power of attorney is.

In the case that you do not possess a power of attorney and become unable to make decisions for yourself, no one will have the necessary legal authority to take care of your financial affairs. With regards to health-related matters, the law allows some people to be named as "statutory health attorney"; however, this might not be someone you would like having control over your health care decisions. You may also want to create certainty with your family members as to who should be responsible for what decisions, and less the risk of family disputes over decision making, which could hinder the decision will making process and that would impact you, your finances and your health, and why would you want to risk that?

If you fail to appoint a Power of Attorney

Failing to create a power of attorney means that an application must be made to the Victorian Civil and Administrative Tribunal (VCAT) in order for them to appoint someone to handle financial or healthcare decisions. These persons may not necessarily be people with whom you would want making choices on your behalf. A law firm, trustee company, or other entity could be chosen, who would charge you considerable fees to do the job. And what’s worse, you would have a stranger appointed to make decisions about your life. You don’t let strangers decide for you now, so why let a stranger make important decisions for you when you are at your most vulnerable, and have to pay them for it too?

Applying to VCAT

Applying to VCAT can be a source of pressure and stress for those close to you. Supporting documents must be compiled, including medical reports, before appearing in the tribunal. To help with this procedure, people may wish to acquire legal advice; however, this would cost considerably more than a power of attorney would. Such costs will most fall on you as well.

During the VCAT proceedings, a certain amount of time may pass in which no one will be able to do anything on your behalf, and this could be damaging for you, and destressing for those who care about you.

A Power of Attorney is an inexpensive and underrated tool

Establishing a power of attorney beforehand can be beneficial for everybody involved. Doing this correctly will not only lessen the worry associated with making an application to VCAT, but also save costs and time, as well as prevent any dispute regarding who will make decisions on your behalf. Most importantly, it establishes what exactly you would like to happen in a way that is viewable by all.

WHY WEB WILLS?

Web Wills, powered by HazeLegal has a team available to answer any queries you might have about power of attorneys, or can help you draft one. Don't hesitate to get in touch for assistance with the process. We also offer fixed fees, so you know what it will cost before you even get started, no nasty hidden surprises.

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Hazel Todd 03/05/2023 Hazel Todd 03/05/2023

Factors to Consider Before Drafting Your Own Will

When planning your will, you may be tempted to wonder why you need a lawyer when you can do the job yourself. However, consider this: your last will and testament is probably the most crucial legal document that you'll ever sign. This paperwork distributes all of your assets at death, determines who takes care of minor children or pets after you're gone, and even specifies your funeral plans.

Maybe then, instead of 'Why pay for a lawyer,' the better question would be 'why wouldn't I ensure my most important legal document is professionally prepared?'

You won’t know if you have made a mistake until it’s too late

Making a will with yourself may not always be the best decision for everyone. Even small errors can have huge implications, such as forgetting to appoint an executor or guardian of minor children, not dating the will, incorrect wording regarding gifts and leaving uncertain provisions. Everything you put time into making sure your estate and loved ones are taken care of could be undone in mere moments. Even a comma in the wrong place can have huge consequences. Mistakes can also cause your family further grief by having to rectify issues left behind after you are gone. Your passing will be difficult enough, so why make it even harder, more stressful, and potentially family destroying by not have a proper Will? Remember, lawyers train for many years to be able to offer the services that they do.

Problems it will cause your family.

Rather than leaving a do it yourself will behind, have you considered the problems it could bring to your family and friends? At a time when they are mourning your loss, do you really want them to be dealing with additional troubles as well? To answer this pivotal question, let us examine the difficulties that can arise from a do it yourself will.

These issues may include:

No Valid Will, No Peace Of Mind

When there is no valid will, the intestacy laws take effect and can allocate your assets to family members or even a former spouse that you did not intend. This could be quite distressing for you and your dependents as it may take some time before any issues are resolved and money is made available to vulnerable members of your family for living expenses.

No Will, No Plan

When your will is not legally valid, it is essentially the same as not creating one at all. In this case, intestacy laws take precedence and control who receives your assets after you die. Unfortunately, those assets might end up with someone you didn't expect or even a former partner in some cases.

Processing Delay

It may take a while to identify any issues with the will and unlock access to your assets. In the event that you have people depending on you, this could be an obstacle in their ability to acquire money for everyday living costs.

Download our FREE Guide to Testamentary Trusts, and why you absolutely need one.

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Hazel Todd 13/03/2023 Hazel Todd 13/03/2023

Who Inherits My Mum’s Estate, me or My Step-Dad?

The answer to this question depends on various factors such as the laws of your country or state, the existence of a valid will or trust, and the specific circumstances surrounding the inheritance.

Generally, if the deceased person (your biological parent) had a will or trust that specifies how their property should be distributed, then the terms of the will or trust would dictate who inherits what. If there is no will or trust, then the laws of intestacy in your country or state would govern who inherits. That is why it is important to decide for yourself and write your own Will, which can easily be done with our Online Will Writing platform.

In most cases, spouses and biological children are typically given priority over step-children or other non-blood relatives in matters of inheritance. However, this can vary depending on the specific laws of your jurisdiction. In Victoria for example, the partner receives the first almost $500,000 of the Estate, then an equal share of the balance along with the children. It's best to consult with a lawyer who specializes in inheritance and estate law in your area for a more specific answer to your situation, as well as the update to date entitlements of the spouse or de facto of the deceased. Please book in a time to discuss that with one of our lawyers via the following link.

If your parent is still alive, it really is best to have a discussion with them about their wishes, whether they have a Will, where it is, and if they don’t have one perhaps urge them to write one via the best Online will Writing platform, this is quick, easy and cost effective, and eliminates a lot of stress for everyone.

The most important thing to note is the location of the Will, we suggest you read our blog “What if Someone Hides the Will”

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Hazel Todd 10/03/2023 Hazel Todd 10/03/2023

What if Someone Hides the Will?

If someone hides a will, it can create a lot of problems for the beneficiaries and the executor of the estate. When a person passes away, their will is typically filed with the probate court in the jurisdiction where they resided. This is done to ensure that the will is valid and to initiate the process of distributing the assets in accordance with the deceased person's wishes.

If someone hides a will, it may delay the distribution of the estate and create uncertainty and confusion among the beneficiaries. In some cases, the hidden will may not be discovered at all, which can lead to an even more complicated situation.

If you suspect that someone has hidden a will, you should contact a solicitor, such as ourselves, via the following link who deals in estate planning and probate law. We can help you explore your legal options and take steps to try and locate the will. In some cases, it may be necessary to go to court to compel the person who is hiding the will to produce it.

Ultimately, it's important to remember that hiding a will is not a smart or ethical choice. It can create unnecessary stress and conflict for the family and can even lead to legal consequences for the person who is responsible for hiding the will.

Our solution to this is to use our Digital Vault, wherein all important documents can be uploaded, including the Will, and funeral wishes, last wishes, letters to loved one, list of assets and liabilities, titles, you name it.

You may also wish to read our blog post “How can I let me Family know where to find my Will?”

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Hazel Todd 09/03/2023 Hazel Todd 09/03/2023

How can I let my family know where to find my Will?

It is important to make sure that your family knows where to find your will in case of your passing. Here are some steps you can take to ensure that your family knows where to locate your will:

1. Discuss it with them: The first step is to talk to your family members and let them know that you have a will and where it is located. Make sure to provide them with any information they need to access it, such as the name and contact information of your solicitor or the location of the safe or box where it is stored.

2. Keep it in a safe place: Store your will in a safe place, such as a fireproof safe or safety deposit box, where it will be protected from damage or theft. Make sure to let your family members know where it is located and how to access it.

3. Provide copies: Provide your family members with copies of your will, as well as any other important documents, such as a power of attorney or advance directive. This can be helpful in case the original is lost or damaged.

4. Update it regularly: Make sure to update your will regularly, especially if there are significant changes in your life, such as the birth of a child or a change in your marital status. This ensures that your wishes are always up-to-date and that your family members know where to find the most current version of your will.

5. Consider using an online storage service, such as our Digital Vault: This service allows you to store your will and other important documents securely. Once you set up your vault, you nominate which person or person should receive some or all of the documents of your choosing. This password-protected, military grade encrypted account that you can access from anywhere, so you can easily update or retrieve your documents as needed. Make sure to let your family members know that you are using an online storage service, however if you set them up as recipients of a documents, they will also be notified.

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Hazel Todd 12/01/2023 Hazel Todd 12/01/2023

6 Ways to protect yourself and your Kids financially when you re-partner

So we are well passed the age of believing in happily ever afters, and know that romance is not all dreamy glances and sweaty palms. Who said that adulting would be all fun and games right!

So, what can you do to protect yourself and your children when you start a new relationship?

Discuss your expectations relating to finances with your new partner

Maybe not on your first date, but pretty early on in a new relationship, it is important to express your values relating to money. Differing values and expectations around money are one of the most common reasons for relationship disputes and break downs.

Is this really the right person for you if you can’t agree on money issues? It’s better to really think about this before you become too invested in the relationship.

Discuss getting a Binding Financial Agreement right from the start

As a lawyer I’ve handled a lot of divorces. They are hard for everyone, and they can get very nasty. You would be forgiven for thinking that your paramour wouldn’t behave badly if you broke up, but everyone thinks that when they are in love, many are wrong. In fact there’s a whole divorce industry to prove just how wrong people can be.

So hope for the best, but prepare for the worst, by discussing early on in the relationship, before your would even be considered as a de facto, that if the relationship were to continue, you would expect that you and your partner would sign a Binding Financial Agreement to protect your assets for you and your kids, and that he would likewise do the same.

If you cannot successfully navigate this conversation, just how bad do you think things would get if you broke up? It’s a conversation that separates the men form the boys!

Actually sign a Binding Financial Agreement.

There is no clear formula for determining when you are in a de facto relationship, which would give you and your partner a right to claim on the assets of the other. When things start to get serious you should discuss this with your lawyer. You can make an appointment here if you would like to discuss it with us.

If you move in together, that is a clear indication that you might be in a de facto relationship, likewise if your relationship has lasted longer than 2 years. If your family and friends would consider you a partnership, or if you are both behaving in a manner that promotes your joint wellbeing, then it is time to actually get that Binding Financial Agreement you’ve been talking about. Get one even if he says that you don’t need one because he would never take any of your money. Trust me, you still need one as many claims are made out of spite, hurt or jealousy and not by a genuine need or belief that an ex-partner has contributed to the growth of your assets.

You will save yourself and your family a lot of stress and money in the long run by taking this precaution. Rather know up front if he is in it for the money.

Choose the right executor in your Will

Look, I get it, nobody wants to think of their own death, and we would all rather put off getting a Will to avoid thinking about it. Then something happens, and the thought of leaving your family unprotected fills you with anxiety.

Getting a Will does not alter your chances of dying, but it does show your family that you thought of them enough to protect their future and ease the burden of your own passing on them by just a bit. More importantly their memory of you will be a more positive one – you took care of everything!

Your executor has a lot of power on how your assets are managed after you pass. You must choose the right person. You must choose someone who will make sure that your kids are looked after in every way.

And if you don’t already have a Will now is the time to get one. They are really easy and affordable. Why not check out our online Will, which is a great way to get this done. If you don’t have a will the father of your kids, your current partner, or ex-partner (if recently broken up) could all apply to be your executor. So, make a choice of who you want, and who will look after your kids’ best interests.

Appoint someone trustworthy as your Power of Attorney

If you become incapacitated, say due to an accident or illness, who will look after your finances and make medical decisions for you in keeping with your values and wishes. If you do not appoint someone the courts will. They could appoint anyone they choose, often a government agency or maybe a family member who you would not choose for yourself. Our Complete Estate Planning Solution includes the Powers of Attorney you need. Or you can arrange them separately, they are very cheap and easy to arrange. Remember if an agency is appointed, they will charge you a lot of money to manage your money. So, choose the person you want, don’t leave it to chance, they can make any decision for you that you can currently make for yourself.

Register a Binding Death Benefit Nomination with your Super

This will ensure that the money in your Super is paid to your children, who will need it more, otherwise your new partner may get all the funds.

You should also review your Nomination from time to time, as your children’s respective needs will change over time.

And finally you should also review it from time to time, as some super funds have lapsing death benefit nomination that need to be reviewed periodically, so check what yours says. And also check with your accountant as to the most tax efficient way to make the nomination.

Disclaimer:

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer at http://hazelegal.com.au Please note that we do not endorse any of the services mentioned in this article, they merely serve as an example.

Hazel Todd 21/12/2022 Hazel Todd 21/12/2022

Why it’s Really Important that you get a Will?

Your Funeral Arrangements could be up for manipulation

When you have a Will, the Executor is empowered to make all necessary decisions relating to your funeral, be it burial or cremation. If you do not choose an executor, your body could be left in limbo while your family fights it out over what should be done with it.

The wrong choice of executor can mean that your body or ashes are used as a bargaining tool between warring family members where some family members are denied the option to visit your resting place because of remoteness, or even, as I have once experienced, the ashes scattered in a private garden of the executor, where some siblings were not allowed to visit. People really do fight over the strangest things.

If you want to be able to rest in peace, choose the right executor in your Will. Our Online Will can easily help you with this concern.

If you want to rest in peace, it’s up to you to make it happen.

There may be no-one to look after your kids at first.

You can appoint a guardian for your kids if you pass away before they are adults. You should check with your nominated choice to ensure that they are willing to do it.

If you don’t appoint someone as guardian, who will look after them? Could your parents and in laws be fighting to take the kids? Or maybe no-one steps up to the task because you never had the conversation! Either way your kids could suffer terribly, not only by losing their parent but feel hurt that you didn’t take the time to take a simple step to look after them.

Take care of all the details before you pass away, and you never know when that will be, so do it now, as this will prevent a lot of suffering, and protect their mental health. Most parents would spend a couple of hundred dollars to protect the life long mental health of their kids, I hope.

Our easy Online Will, takes no time at all, and can prevent a lot of possible damage to your children’s well-being.

The government could get their hands on your money.

If you don’t have any immediate family, your assets could be surrendered to the government. If you want your money to pass to a friend or charity, you need to write a Will. There is just no way around it.

Because you’re an adult and should be responsible for yourself

As harsh as it may be to say, as an adult we are all responsible for cleaning up our own messes and sorting out our own affairs. So many people believe that seeing as they will be dead, it will be someone else’s problem to deal with their things once they are passed. While at the same time resenting others for leaving their messes for them to clean up. Don’t be that guy!

Writing a Will is just the right thing to do. Our online Will can easily help you with this, quickly and easily.

You will be remembered more fondly for being the type of person who is responsible for themselves.

How do you want to be remembered?

The lawyers will get rich off your estate if you don’t write a Will.

If there is a dispute regarding what you would have wanted, that battle will ultimately lead to hefty legal expenses, paid for by your estate.

If you want that money to go to the people of your choosing, you need to actually choose, and write a Will.

For the 30 minutes it takes to go through our, and arguably the best online Will, you can spend your money far more wisely.

So why not get started now?

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Hazel Todd 20/10/2022 Hazel Todd 20/10/2022

What is The Executor’s Role when Someone Dies?

Firstly, it is important to know what an executor actually is before we examine their role.

What is an Executor?

An executor administers your estate after you die. They are also known as your Personal Legal Representative. It is their job to manage all of your assets and liabilities and take care of all of your possessions. And they must liaise with your family to put all of your affairs to rest.

Essentially as Executor has the power to deal with all of your property, as you have when you are alive.

An executor is the person that you appoint in your Will to take care of everything after you die. The appointment of a trustworthy and reliable person to be your executor is one of the top reasons to write your Will. When you Write your Will, whether through our online Will Writing Process or face to face with one of our lawyers, you should choose the best person for the role as well as appoint an alternative, in case your first choice is not up for the task at the time of your death, for whatever reason. They do not have to be your executor, so you should check with them first before your appoint anyone.

1. They Organise the Funeral

The Executor’s first job is to arrange the funeral or cremation and decide on how the ashes are to be dealt with, if appropriate. This is of course done even before any of the legalities, such as obtaining probate are taken care of. This can be an emotionally charged and difficult role, so make sure that you appoint someone who is up to the task

2. Take control of and Protect the Assets

Even before probate is granted the executor must secure all the assets. This may entail bringing home the deceased’s car from the hospital, making sure the home is secure and any pets taken care of.

3. Obtain Probate

The nominated Executor must apply for the grant of probate, or if there is no Will, a Grant of Administration. It is better to have a Will so that you can appoint your choice of executor and prevent dispute amongst the family as to who will step into the Role. If there is no-one appointed then there will be difficulties in arranging your funeral and protecting your home, pets, and other assets until someone is appointed by the Court. Such a delay could cause a great deal of distress and a loss of your assets, never mind the well being of your pets being at risk.

A grant of Probate or Letters of Administration give your chosen executor the legal authority to deal with your estate and all your property.

The Executor will also pay off all the debts of the deceased and their estate, including tax. It should be noted that any tax liability, along with all other liabilities must be determined by the executor before distribution of the estate, and fully paid.

4. Defend the Estate

If there are any challenges to the estate or will, the executor must defend them so as to uphold the terms of the Will. This could be a claim where a person feels the Will maker has not provided for them sufficiently.

If the executor themselves wants to challenge your Will, they would need to withdraw as your executor due to this conflict.

5. Put into effect the terms of the Will

Your Will is an expression of your wishes of what should happen to your property after you die, what gifts you would like to leave to your loved ones, and how you would like the gifts that you give to be protected where some family members may have difficulty managing a substantial sum of money, such as a child or person under disability.

If you have worked hard during your lifetime, and love your family, you will want to make a note in your Will to gift the fruits of your hard work to those that you love, in such a way that it protects both your loved one and the gift so that they can derive the maximum benefit from this gift. That is why we have created the best online Will, so that this process is easy, inexpensive, and effective.

6. Manage your Trusts created in your Will

If you create a testamentary trust in your Will, your executor can take over the role of trustee, or you can appoint a separate trustee to hold some or all of your assets over a period of time with the aim of protecting the property and the person who is to receive the benefit of this gift.

The trustee deals with the estate after the executor administers it until the assets are ready to be distributed.

The trustee must file tax returns, after obtaining a separate tax file number for the estate or trust as relevant. The trustee may be required to pay tax on behalf of certain beneficiaries such as foreign residents. The executor and trustee are usually the same person and on a practical level the roles are merged.

Download our FREE Guide to Testamentary Trusts and why you Absolutely Need One, to protect your family and hard earned assets. Why let the tax man or someone else get their hands on your money?

7. Act as your Appointor

If you have a family trust in existence before you die, your executor shall become the appointor to that trust. That means that they can appoint a new trustee. This is an extremely powerful position as they can appoint someone who may be biased against some of your beneficiaries in a way that you may not intend.

You can therefore appoint a new Appointor in your Will, who can then nominate the trustee to your existing trusts.

8. The Executor’s year

This is the period in which an executor must wind up the estate and make a distribution in accordance with your Will. The executor cannot be compelled to distribute the assets from an Estate before one year has passed from the grant of Probate.

If you have any questions how our Online Will Writing platform can help you appoint the right Executor, please contact us.

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Hazel Todd 29/08/2022 Hazel Todd 29/08/2022

10 Most Common Questions People Ask When Doing Their Will

A Will is a signed, legally binding document that describes how you want your assets to be handled after you die. What follows are the 10 most common questions that we get asked by Will makers.

1. CAN THE WILL BE CHALLENGED?

If there are any issues about the legitimacy of a Will, it might be challenged or contested.

A Will may also be challenged for the following reasons:

· Someone you were liable to support believes that your gift to them is unfair portion or that didn't make enough provision for them. A close relative, such as a spouse, child or stepchild, grandchild, or parent, could be involved.

· That someone pressured you into signing your Will, and therefore it is invalid. This is difficult to prove, but it is best to have a Will that is drafted by a Lawyer and witnessed by them, to remove doubt.

Also, when choosing to do an Online Will, make sure that it is backed by a lawyer, who can review it and ensure that it is all in order. Remember that an Online Will Preparation platform is a way to work smarter and therefore offer a more cost-effective process, as we do, but do not use a DIY Will Kit from the post office that can’t be checked by a lawyer. Even the Best DIY Will Kit on offer should be checked by a lawyer.

2. DO I LEAVE MONEY TO MY KIDS?

You've worked hard and diligently in the hopes of providing anything for your children. While you may adore your son or daughter-in-law as if they were your own child, it's normal to question whether there are any ways to ensure that the money you leave behind stays in your family.

While the subject may appear strange at first, it is one that many parents who leave massive wealth to their children ponder at some point. That's because if you leave assets to your child entirely, their spouse usually has an equal legal claim to them.

There are, however, methods to leave money to your children rather than their spouses, so speak to us if you want to know your options.

3. DO I NEED A TESTAMENTARY TRUST?

Testamentary trusts are established by a Will to provide beneficiaries more flexibility over the transfer of assets. Testamentary trusts can offer tax benefits, making them a useful estate planning tool.

There are two types of testamentary trusts that are usually used:

Testamentary trusts with discretion.

Through a testamentary trust, the executor allows the beneficiary to take part or all of their inheritance in a manner that is right for their circumstances. The principal beneficiary may have the authority to nominate and dismiss the trustee, as well as to administer their inheritance within the trust.

Protective Trusts

Protective testamentary trusts are used to protect a beneficiary must receive their inheritance through the trust and has no power to nominate or dismiss trustees. If the beneficiary is unable to handle their inheritance owing to age, incapacity, or spendthrift habits, this option may be advantageous.

Download our FREE Guide to Testamentary Trusts and Why you Absolutely Need one, to understand all the ways they benefit you and your family.

4. DO I NEED A POWER OF ATTORNEY?

Powers of attorney for financial and health care should be included in everyone's estate planning documents, along with a Will. Powers of Attorney apply for decisions made on your behalf while you are still alive

A power of attorney can be used for a variety of reasons, and there are many different forms of powers of attorney. They are good to have in place right now because you never know when an emergency will strike and you'll need a power of attorney. If you become incapacitated and don’t have a power of Attorney the Court will need to appoint someone who they deem appropriate, potentially a stranger, to make decisions regarding your finances, health care and lifestyle choices. Other sorts of powers of attorney may be required only if a certain circumstance develops, such as to someone to sell your house while you are out of the country.

5. HOW WILL MY FAMILY KNOW WHERE TO FIND MY WILL?

When someone dies, one of the most important documents they leave behind is their Will. It states who they want as executor to carry out their wishes and how their assets should be distributed. Extra instructions, such as burial choices or guardianship of minor children, can be included. With such important instructions issued, it is crucial that a person's last Will and testament be located as quickly as possible and that appropriate legal advice be obtained.

So, where do you look for a deceased person's last Will and testament? A copy of a Will is normally maintained with the person's important documents, and it's always a good idea to inform the executors of where they may obtain the Will when the time comes. The original Will is required to apply for probate and provide instructions to various financial institutions.

If a copy of the Will is discovered, the law firm or Will drafters who created it are usually listed on the cover page or in the addresses of the Will's witnesses. The law firm that prepared the Will normally keep the original signed document or can trace where it was sent.

If you are unable to locate a copy, the best place to begin is by contacting the law firm that represented the deceased. This could be a law firm that has assisted them with real estate transactions, family law matters, or business advice. If you don't know of any law firm or Will drafter who worked for the deceased, phone the bank, as some banks still preserve records for their customers. Some people may lodge their original Will with the Supreme Court in their State.

We offer a Digital Vault service where you can store all your important documents, including your Will, and when we receive confirmation of your passing we trigger the release of your documents to those of your choosing. This is the best way to protect your valuable documents and information.

6. HOW CAN I ENSURE THAT MY WILL IS VALID?

For a Will to be legitimate, it must include the following:

· It must be in writing,

· signed by you,

· and signed in the presence of two witnesses.

To make a Will, you must have the mental capacity to do so and comprehend the consequences.

You must have made the decision of your own volition and without the influence of anyone else.

The Will should begin by stating that it revokes all previous Wills. If you have a previous Will, it should be destroyed.

Again, it is best to consult with a lawyer, who will ensure that your document is valid, even when going through the Online Will process.

7. HOW CAN I CHANGE OR CANCEL MY WILL?

There are several circumstances under which amending your Will is recommended:

· Changes in your life,

· such as marriage,

· divorce,

· or the birth of a child

· or the sale or acquisition of certain assets,

may affect how you want to dispose of your assets after you die.

While there are a variety of reasons for updating a Will, it is critical to understand how to represent your current goals in your Will. Failure to cancel or amend a Will in the correct manner can lead to confusion and costly litigation.

In most states, rescinding a Will is a simple process. In general, you can revoke a Will by

(1) destroying it,

(2) creating a new one, or

(3) changing an existing one.

Giving up all of your property and assets before you die can sometimes have the effect of nullifying a Will.

8. WHAT HAPPENS TO MY STUFF IF I DON’T HAVE A WILL?

If you pass away without leaving a Will, you are said to have died "intestate." When this happens, your property will be allocated according to the intestacy laws of the state where you live. Any bank accounts, securities, real estate, and other assets you own at the time of death are included. The intestacy laws of the state where the property is located will apply to real estate so this can complicate things.

If you were single, married, or had children, the laws of intestate succession differed significantly. Your property is usually divided among your "heirs" which could include your surviving spouse, parents, siblings, aunts and uncles, nieces and nephews. When no relatives can be discovered, the estate is usually given to the state.

Using an Online Will process is a really easy way to ensure that do get the Will done. Just don’t forget to sign it.

9. WHEN SHOULD I UPDATE MY WILL?

After you've written your Will and kept it safe, you might be wondering how often you should update it.

When you have a major life event, estate lawyers advocate amending your Will. Even if you don't think anything has changed, it's a good idea to reread your Will every four to five years. This ensures that your family is safeguarded and that your final wishes are carried out.

Following these key life events, you should update your Will:

· You've just welcomed a new addition to your family. Whether you give birth or adopt a child, you'll want to make sure your child is taken care of and has a legal guardian listed in your Will.

· The status of your marriage or de facto relationship changes. Weddings, divorces, and the death of a spouse or partner are all good reasons to amend your Will's beneficiaries. (You might also want to update your enduring financial power of attorney and medical power of attorney to ensure that someone can make choices for you if you become incapacitated.) It's also worth mentioning that, unlike your biological children, any stepchildren you may have or may not have no legal claim to your property. You can name them as beneficiaries in your Will if you want to include them.

· You have received a cash windfall. Sudden wealth increases can be a pleasant surprise. You can modify your beneficiaries, increase your gifts, or leave a charitable bequest as a legacy.

· You've had some financial difficulties. Your wealth may fall in some circumstances, such as if you lose money in the stock market. As a result, you might change your beneficiaries or the assets you leave them.

· The laws are subject to change. The laws governing taxes and estates can change at any time. Other estate planning options, such as living trusts or transfer, may become more appealing as a result.

· You relocate to another state. The laws governing estates differ from one state to the next. This isn't always the case, and if you examine your Will after each state change, you can avoid legal issues.

· Your health begins to worsen. It's a good idea to examine your Will while you're still healthy if you've been diagnosed with a degenerative condition or terminal illness. You may want to make changes to your Will or give things away now so that they aren't included in your estate later.

· You become a grandfather or grandmother. If you wish to include grandchildren in your Will, make sure to update it whenever your family grows.

· You have a change of heart about a beneficiary. People change their minds for a variety of reasons, not all of which are negative. Let's imagine you planned to give a sizable portion of your fortune to a disabled niece, but she no longer needs financial assistance. Perhaps you've become involved with a charity and want to ensure that it continues to get funding after you've passed away.

10. WHAT IF I NO LONGER HAVE THE ASSETS I INTEND TO GIFT WHEN I DIE?

If you gift someone a certain item, and you do not have it when you die, then the gift fails. You must be sure to make it clear in your Will that in giving the gift, that that is not an instruction to your executor to obtain the item to give. If in doubt get in touch with us to discuss this.

If you have less assets when you pass away remember that your specific gifts like items or money are paid out first, and if you leave the balance of your estate to someone think that they will get a sizeable inheritance, but they may not because your cash gifts are too high. It may be better to leave percentages to your beneficiaries rather than a specific amount to allow for changes in your wealth over time.

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Hazel Todd 29/05/2019 Hazel Todd 29/05/2019

How to Future-Proof your Will and Estate

We’ve all heard the saying ‘Where’s there’s a Will… I want to be in it’, or how about, ‘where’s there’s a Will… there’s a relative’.

It’s an emotionally charged time when someone passes on, and it is those strong emotions, and often a sense of possessiveness over the deceased, their money, or being the one who grieves the most, which can bring out the worst in people, and make an already bad situation so much worse.

Why Wills get Contested

The bottom line is, that a Will may get challenged when someone feels aggrieved by the contents of the Will. Oftentimes this is fuelled by greed or resentment.

But at other times the Will can be challenged where the Will maker has not done the right thing by someone and has failed to provide for them when they should have, or the Will is not valid.

Grounds to challenge a Will

1. Lack of Testamentary Capacity and Lack of Intention

Where the Will-maker had a lack of capacity, say from dementia or deficiency of mind, any Will that they try to make can be overturned.

Likewise, if the ‘Will-maker’ signed a document that they did not intend to be a Will, even though it may look like a Will in some respects, can be overturned.

2. Duress

If someone is forced to sign a Will, that Will shall not be said to be valid, because it wasn’t the signatory’s real Will.

3. Failure to provide

This is the most common ground for the challenge to a Will. The claimant does not need to prove that the Will is invalid for any reason, just that the testator failed to provide for them, when they had a duty to do so, namely that they were dependent on the deceased.

Can we leave our money to whomever we decide?

At a very basic level we can leave our money to anyone, at least at a Common law level. But then the government stepped in after too many people were leaving their family destitute by leaving all their money to a mistress or only the male heir or perhaps even the Lost Dogs Home out of spite (not to say that leaving to charity is not a worthwhile cause.) The government had the idea, and rightly so, that it really was for the individual to provide for their own family, rather than the State having to shoulder this burden, and put a few restraints in place.

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Hazel Todd 29/05/2019 Hazel Todd 29/05/2019

Who will look after your Kids?

Who will look after your kids if something were to happen to you?

This is probably one of the biggest fears a parent has - not being there for their kids.

Who will look after your kids if something were to happen to you?

This is probably one of the biggest fears a parent has - not being there for their kids.

While you cannot guarantee that you will always be around to take care of your kids, you can plan for this possibility, simply and cheaply, by nominating someone in your Will.

Not sure who to pick for the job? Firstly, it starts with a conversation with your nearest and dearest to gauge who would be willing and best suited for the job.

Still can't decide. Remember that your Will only becomes operational once you die, so just choose someone, rather than leaving it for Child Protection and foster parents to take on the role. You can change your Will as often as you like to take care of changes in anyone's circumstances.

Then you could leave your guardian the information they need to know about raising your child. Don't know where to start, then check out my book "My Life Manual: Information and Messages for my Executors and Loved Ones" to guide you through the process.

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Hazel Todd 29/05/2019 Hazel Todd 29/05/2019

Who can Challenge a Will?

So, when the legislature stepped in, they stated that a family member could claim against the estate of a deceased, where that person had a morally duty to provide for the claimant.

For many years this turned into a free-for-all. Many Wills put through the Probate process were challenged by sometimes distant relatives, or people who lacked the need but who were driven by greed, and sense of entitlement or even where the Will wasn’t “fair”, in much the same way as a toddler may think it isn’t fair that their sibling got a bigger slice of cake, even though they have more than enough cake on their own plate.

The Courts were then becoming bogged down with all these claims, made worse by the fact that the legal costs of a challenge were often paid from the deceased Estate, so there was nothing to lose for many.

So again, the Legislature stepped in a tightened things’ up so that only dependents of the deceased could make a claim for support from the Estate. While this was bad news for many prospering law firms, it was good news for the busy Courts and Testators.

Preventing a Challenge

Now the question arises of who is a dependant, and who do we really have a duty to provide for? The answer to this varies in each of the States.

However, if you feel that someone could make a claim against your Estate when you are writing your Will but that you do not have a duty to leave them anything, or more than what you have, there are a few things you can do:

Document why you have written the Will in the way that you have;
Consider the use of a Trust to own your assets, but this must be set up specifically with the end in mind;
You could enter a Binding Financial Agreement with your Spouse or Partner. Second marriages are particularly messy in this regard;
Enter a Deed with your family in relation to how you intend to deal with your Estate;
Manage everyone’s expectations while you are still alive;
Gift important items while you are still alive.
Keeping your Will up to date and secure (such as left with your lawyer), to ensure that you’ve considered the changing needs of your family.

Please leave your comments, or get in touch with the writer if you have any questions.

Download our FREE Guide to Testamentary Trusts and why you Absolutely Need One to protect your family and your hard earned assets. Why let the taxman or someone else get their hands on your money?

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer.