Thinking about what will happen after you pass away is daunting but incredibly important.

A Will doesn’t have to cost the earth or be complicated but there are strict requirements for making a valid Will in Australia. This is why it is important to talk to a lawyer about your Will.

A properly drafted Will should take into account your financial position, the type of assets you hold, the location of your assets, any children you have and the type of relationship you are in (de facto or married).

If you die without a Will, your assets are automatically distributed in line with the Intestacy Act 2010 (Tas) without any consideration of what you would have wanted. It is also possible that an agency such as the Public Trustee would be appointed as the administrator of your estate/assets. In that situation, the administrator would charge professional fees for organising the sale of your assets which ultimately reduces the amount that your family will be paid.

Advocate Lawyers have fixed fee options for simple Wills. Call us for an initial discussion with a lawyer about your Will.

An Enduring Power of Attorney is a document that nominates a person or organisation to make financial decisions if you are temporarily or permanently incapacitated. If a doctor provides a medical certificate stating that you have lost the capacity to make your own decisions then your nominated attorney can step in to make them for you.

Powers of Attorney are also useful when you know you will be unavailable to sign important documents for a period of time. For example, if you are buying a house but will be interstate or overseas for a few weeks and unavailable to sign important documents then you might want to nominate a family member to sign for you.

In Tasmania, a Power of Attorney must be registered to be relied upon and we ensure that this is taken care of so that you can have peace of mind no matter what the future holds.

If you are looking to manage a loved one’s finances but they have already lost capacity and can’t sign a Power of Attorney, we can help you apply to the Tasmanian Civil and Administrative Tribunal (TASCAT) to be appointed as their attorney.

Advocate Lawyers also have fixed-price packages which include Power of Attorney documents. Call us for an obligation-free discussion.

An Enduring Guardianship document allows you to appoint guardian/s to make health or lifestyle decisions for you if you are unable to make them yourself. A guardian may make decisions on what medical treatment you receive or what doctors you see and how often.

If you need to make decisions for someone who has already lost capacity but has not nominated a guardian then we can help you apply to Tasmanian Civil and Administrative Tribunal (TASCAT) to be appointed as their guardian.

An appointment of enduring guardian must be registered to be relied upon and we ensure that this is taken care of.

Advocate Lawyers also have fixed-price packages which include enduring guardianship documents. Call us for an obligation-free discussion.

Many people are surprised to find out that their Will doesn’t automatically include their superannuation. Superannuation is handled separately to your Will and you need to nominate a beneficiary with your super fund who will receive your superannuation after you die.

There are different types of nominations. A Binding Death Benefit Nomination is different to a nomination you may have made through your online account which may not be binding. Without a binding nomination, your super fund may decide who gets your superannuation.

There are also laws governing who can receive your superannuation. You can only nominate your spouse/de facto partner, your children, financial dependents or the legal representative of your estate. Some nominations have tax consequences and you may want to seek financial advice on this before completing your nomination.

Standard Wills are for families that want to ensure that their immediate family, usually their children and grandchildren, inherit assets when they pass. These would have a maximum of 3 specific gifts and leave everything to a class of beneficiaries (i.e. all children/grandchildren) in equal shares. These can include burial and funeral preferences and/or nominations of guardians for children under 18 years.

Sophisticated Wills are for clients with more complicated assets or family situations. This tier will apply for people who have or wish to deal with:

• an uneven distribution of assets between beneficiaries;
• self-managed superannuation funds, international assets, companies or trust structures;
• protection of assets from immediate family members that they wish to keep out of a will;
• allowing a partner or loved one to stay in a property but not inherit, usually through a life estate or right of occupation noted in the Will.

Often people in second relationships or relationships later in life who have separate assets or children will require a sophisticated Will to ensure that both their children from a previous relationship and their new partner are provided for without the possibility of disputes developing.

Rather than leaving your estate to be given directly to beneficiaries, where you have substantial assets you may decide to move them into a Testamentary Trust when you die. A testamentary trust allows greater control over how your assets are distributed and provides flexibility as to who receives income and when, which may have significant tax advantages. Testamentary trusts are often used to keep wealth in the family across generations rather than dividing wealth between immediate beneficiaries. You can provide for minor children, protect assets from future or current partners of beneficiaries and protect assets for beneficiaries who may not be financially responsible or have special needs. Drafting these Wills usually requires us to work with your accountant or financial advisor.