Category Archives: Blog

The role of executors

Being an executor can be time-consuming and emotionally demanding. You may be personally liable for the decisions you make. So agreeing to be executor is a decision which should not be taken lightly.

The paperwork involved in estate administration is increasing every day. Prior estate planning involving the relevant family members can minimise the negative impacts on a family. Many families are shocked to discover that the death of a loved one can trigger so much bitterness. Estate planning can identify areas of dispute and often help resolve them during the lifetime of the willmaker.

Estate planning involves more than just a well drafted will, although this is an essential component. Analysing the assets and liabilities and discussing gifting of personal effect (high sentimental value but generally of no commercial value) and implementing these plans can minimise the financial and emotional costs of managing an estate.

Executors are charged with identifying estate assets and liabilities, discharging the liabilities and then distributing the assets in accordance with the will. Some estate assets can decrease in value if not dealt with swiftly or if the estate has insufficient funds to maintain them. Sometimes this means making hard decisions and offending other family members. Whilst fair and open communication between the family members will minimise costs, it is imperative to obtain both financial and legal advice early on to ensure that executors are aware of the risks and obligations involved and some of the options available to them.

Have you been appointed executor?
It is your role as executor to locate the original Will, advise family and friends, then assist and pay for the funeral, and follow up the special wishes/ instructions from the deceased.

You must establish a complete picture of the deceased’s finances, including identifying any debtors and creditors. Funeral expenses, income tax, fees for administering the estate and out-of-pocket expenses must also be paid.

It is also your duty to carry out everyday tasks such as arranging for pets to be cared for, redirect mail, cancel services and pay any outstanding bills.

The executor must identify the estate assets including any interstate or overseas and have them valued, secured and insured. This would include such things as a home, car, superannuation, jewellery, investments and home contents

As an executor you are potentially responsible should something happen to the assets of the estate. It is important for the executor to ensure that all assets including property, collectibles and investments are safe and to arrange insurance protection if needed.

Before an estate can be distributed, it is necessary to obtain a clearance from the Australian Taxation Office. It is your duty as executor to obtain this clearance. It requires both a date of death and an estate tax return. The executor will have to give details of all income earned during the current financial year and past years.

There are many legal issues that arise when administering an estate. The executor is responsible for resolving estate issues, liabilities and disputes. This may consist of challenges to the Will including, entitlement issues and beneficiary disputes.

Wright Clarke Solicitors handle many estate matters and liaise closely with financial advisors to ensure practical efficient and costs effective advice is given to families involved in estate administration and planning.

Have you seen the other posts in our Estate Planning series?
When to review your Will
How do I make changes to my Will

How to change your Will

If your circumstances have changed – your Will must be updated to reflect your current circumstances. But what’s the best way to do this? Let’s go over some of the main questions we get asked when people are looking at changing their Will.

Can’t I just write in my changes?
Your Will is a legal document, and you cannot simply add or delete anything from your Will after it has been signed. Doing so may cause your Will to be invalid. Even the simplest change needs to be done correctly or the results can be costly.

What if I make a codicil?
A codicil is an addition or supplement that explains, modifies, or revokes a Will or part of one. If wrongly prepared a codicil can revoke all of your Will. Will drafting is a very precise legislation driven exercise and should only be handled by experienced solicitors.

Codicils were originally designed to save time and money when Wills were handwritten or typed on a typewriter.

A codicil must be signed and witnessed with the same formalities as those used in the Will’s preparation. We do not recommend attaching a codicil to your Will as there are many legal issues that arise and they have a potential to add to the cost of administering your estate while not guaranteeing the result you intend.

How to change your Will
With today’s technology is it more effective to prepare a new Will. Here at Wright Clarke Solicitors we offer a complimentary 30 minute consultation to review your current Will and to consider your full estate planning needs. If you decide not to make any changes no fees apply. Of course if you do decide to make a new will our team can discuss your needs and advise you of the approximate costs. In most situations you will need to consider more than just your will alone. Contact our team today to book in your consultation.

Have you seen our Introduction to our Estate Planning Series?
When to review your Will

When to review your Will

Some people think that making a Will is something you do once and that you can then forget about it. Nothing could be further from the truth. The only thing that can be worse than not having a Will is having a Will which is no longer relevant to your circumstances.

If a child, spouse, executor, guardian or beneficiary passes away you will need to amend your Will to reflect this.

If you have gotten married since your Will was created it will generally be revoked by the marriage unless your Will is made in contemplation of marriage. A de facto living arrangement will also affect your Will as the de facto partner is entitled to distribution from your estate and may contest your Will if not provided for.

If you have divorced from your spouse certain clauses in your Will may be revoked. If you are separated, contemplating divorce or have been divorced since making your Will make sure you consult our team.

If you buy a significant asset or investment, get involved in a new business, company or trust you need to give consideration to what happens to this asset after your death. It is important for you to review your Will every two or three years or when a major event occurs in your life. Regular reviews of your Will ensure that your intentions are still accurately reflected.

Peace of mind comes from making sure all your affairs are considered. If your circumstances have changed – now is a great time to review your Will.  Wright Clarke Solicitors offer a complimentary 30 minute consultation to review your current Will and to consider you full estate planning needs.  Contact our team today to book in your consultation.

A note to home buyers

Home buyers need to be aware of new Pool Safety Laws. The Queensland government recently introduced Pool Safety Laws that apply to residential homes or units with a pool or spa located in them. These laws require that properties with a pool must have a current Pool Safety Certificate.
If you are considering purchasing a property with a pool or spa it is important to determine whether a current Pool Safety Certificate has been issued. You can search the Pool Safety Register to find out if the property has a certificate.
If you purchase a property without a certificate you will be responsible for complying with these laws which may include putting appropriate fencing measures in place and getting a pool safety certificate within 90 days of settlement. The costs of putting in a fence and any other safety requirements may cost you in excess of $10,000.
Homeowners have until the 30 November 2015 to comply with these measures unless they sell their property before then. What this means is that buyers may be stuck with unexpected fees.
If you decide to purchase a property with no Pool Safety Certificate issued, it will be your responsibility to arrange for a Certificate to be issued within 90 days from settlement or risk facing a significant fine from the Queensland Government.

The Importance of Proper Estate Planning

Have you ever thought what happens when you die?

A Will is the most effective way to ensure your dying wishes are fulfilled. Without this document you are said to die intestate. This means your Estate will be administered according to the Succession Act (Qld). Often when this occurs beloved friends and relatives will miss out on any gifts you may want them to receive. This can cause financial detriment to your spouse in particular. With legal costs rising many people choose to make their wills with a kit. However this often creates problems in the long term as a will written without legal advice may not be valid or may need to be proven before the court. Will kits often end up costing more in the long run. This is because there are many things to consider when planning your Estate. Creating a will is not just about writing down your final wishes. It is about having regard to all of your assets and legal advice is often needed to make sure these assets are able to be gifted under a will. There are many laws surrounding Estate Planning which need to be followed and it is important to ensure that if you make a will that it is valid and effective. The laws change between the states as well so if you have assets in multiple states (such as shares listed on the ASX) consideration needs to be given to these matters.

Who will manage your personal and financial affairs if your have a sudden illness, severe accident or declining mental capacity?

Important to planning your Estate is giving someone the power to act for you should you be unable to manage your affairs. This document is called an Enduring Power of Attorney (EPA). An EPA will set out who is to manage your affairs and to what degree. If you lose your ability to make decisions and do not have an EPA your affairs may be handled by a government department for a fee. Knowing you have an attorney capable of dealing with your affairs when you are absent or infirm gives you peace of mind. This can be simple and straight forward or you may wish to make specific provisions to guide your attorney when they handle your affairs. Planning your Estate is not just about you. It’s about helping your loved ones fulfil your wishes after you have gone.

Legal issues affecting farmers

There are many issues affecting farmers .