Estate Planning (Succession) Law Victoria

Estate planning, otherwise known as succession law, can be quite a complex area of law. At its most basic estate planning is the process of organising all of your assets, including any assets held interstate or even overseas before you die to help ensure that they will be passed on to the right people when you are no longer here.

It is imperative that you get skilled lawyers that have both the expertise and experience in estate planning to ensure the process is as smooth as possible. The team at Shan Lawyers has both the expertise and experience to help you with all your estate planning.

What is a Will?

A Will is a legal document that outlines how you want your assets and property to be distributed after your death. It allows you to appoint guardians for your minor children, how to arrange your funeral, and the nomination of an executor, who is responsible for carrying out the instructions in the Will specify who will inherit your property and make specific gifts to individuals or charities.

Without a will, your estate will be distributed according to the laws of intestacy, Administration and Probate Act 1958 (Victoria), which may not align with your preferences.

An executor is a person you appoint in your Will to carry out your instructions and manage your estate after your death. The executor’s duties include paying off any debts, managing the estate’s assets, and distributing the estate to the beneficiaries as specified in your will. Choosing a trustworthy and capable executor is essential, as they will play a critical role in ensuring your wishes are followed. You can nominate more than one executor to manage your estate.

A beneficiary is an individual or entity you name in your will to receive a portion of your estate. Beneficiaries can include family members, friends, charities, or other organisations. Clearly identifying your beneficiaries and what they are to receive will assist your estate in being distributed according to your wishes.

1. When should You Prepare a Will?

A will is not just for elderly people. Anyone over 18 years old can create a will. You should prepare your Will as soon as you have assets or dependents. Significant life events, such as marriage, the birth of a child, purchasing property, receiving an inheritance, or separation, are key moments to consider creating or updating your will. If you want your wishes to be respected, then yes, prepare your Will to distribute your assets in accordance with your wishes.

2. How Should a Will be Executed?

A Will is valid if

(a) it is in writing and signed by you or by some other person in the presence of you and at your direction; and

(b) the signature is made with your intention of executing a Will, whether or not the signature appears at the foot of your will; and

(d) at least two of the witnesses attest and sign your Will in your presence but not necessarily in the presence of each other.

3. Why Do You Need to Update Your Will?

You may need to review and update your Will regularly, especially after major life changes like marriage, separation, divorce, the birth of a child, or significant changes in your financial situation. Regular updates ensure that your Will accurately reflects your current wishes and circumstances, preventing potential disputes or unintended consequences.

4. What Should be Included in Your Will?

Your Will should include several key elements as per your Wish, some of them are as follows:

Appointment of an Executor(s): The person responsible for administering your estate.
Beneficiaries: Individuals or entities who will inherit your assets.
Distribution of Assets: Clear instructions on how your property, investments, and personal items should be distributed.
Guardianship of Minor Children: If you have minor children, specify who will take care of them.
Special Gifts or Bequests: Specific items or sums of money you wish to leave to certain individuals or charities.
Funeral arrangements: Specify how you wish your body to be handled upon your death and how you would like your funeral to be arranged. If you have purchased a plaque, notify your executor with the relevant details.

5. When and How Can a Will Be Revoked?

You can revoke your Will in different ways. Some examples are as follows:

By your later Will; or
By some writing, declaring an intention to revoke it, executed in the manner in which a will is required to be executed by Wills Act 1997; or
By the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the Will with the intention of revoking it; or
By the testator, or by some person in his or her presence and at his or her direction, writing on the Will or dealing with the Will in such a manner that the relevant Court is satisfied, from the state of your Will, that the testator intended to revoke it.

6. Why do You need a Will When You Have a Trust?

A trust only covers the assets it holds. However, by creating a Will, you ensure that any assets not included in the Trust are still distributed according to your wishes, so nothing is left out. Here’s why:

Covering Assets Outside the Trust: A Will specifies how any assets not included in your trust, such as newly acquired ones or your liquid assets, should be distributed.
Naming Guardians for Minor Children: A Will allows you to designate guardians for your minor children, which is not typically addressed in a trust.
Providing Final Instructions: Your Will can include final wishes, such as funeral arrangements, that aren’t usually covered by a trust.
Pour-Over Will: A pour-over will ensure any assets not transferred into your trust before your death are directed into the trust according to your wishes.

If there is a Will, we’ll guide you through the process step by step to obtain a probate.

Power of Attorney in Victoria

A Power of Attorney (POA) is a legal document that allows you to appoint someone you trust to make decisions on your behalf. The person you appoint is known as your “attorney,” and they can be given the authority to manage your financial affairs, make health care decisions, or handle other personal matters if you become unable to do so yourself.

You can appoint more than one attorney or more than one alternate attorney, and you should specify how you want them to make decisions:

You may appoint them to act on your behalf:

jointly — your attorneys must make decisions together (and all sign any document). It may be difficult if your attorneys live interstate.
jointly and severally — your attorney can make decisions together or independently (for example, either all sign any document, or one attorney alone can sign any document). If you don’t want your attorney to act independently, this may not be suitable for you.
severally — they can make decisions independently (and one attorney alone can sign any document).
majority — a majority need to agree to make a decision (and the majority who agree sign any document). This will work when you have more than two attorneys.

We will advise you, based on your circumstances, which one is more practicable and suitable to your circumstances Speak to us today.

An enduring power of attorney is a legal document that lets you appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. The power endures – or continues – if and when you are unable to make decisions.

You can limit the power to cover only specific matters, and you can choose when the powers start.

2. What is Decision-Making Capacity?

A person who has the ability to make informed and rational choices about their personal, financial, or medical matters. It involves understanding relevant information, reasoning through options, appreciating how decisions impact their situation, and effectively communicating the decision. When a person is unable to demonstrate these abilities due to mental health issues or cognitive impairments, their capacity may be assessed to determine if a legal guardian or representative needs to be appointed to make decisions on their behalf.

You have decision-making capacity if you are able to:

understand the information relevant to the decision and the effect of the decision;
retain that information to the extent necessary to make that decision;
use or weigh that information as part of the process of making the decision;
communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Capacity is decision specific. A person may have capacity for some decisions but not others.

2. How to Choose an Attorney?

You need to choose someone you trust to stand in your place and make the decision you would make for yourself if you had capacity. They should be unlikely to die before you, and be willing, able and available at the time a decision may need to be made. This is because you are giving them the power to make important decisions for you at a vulnerable time of your life.

You have the option to appoint more than one attorney. If you would like to have a discussion about appointing more than one attorney and determine whether they should act jointly, severally, or jointly and severally, we will explain the options to you so that you can make an informed decision. Contact Shan Lawyers.

3. When Should I Consider Setting Up a Power of Attorney?

You should consider it when:

You want to ensure that someone you trust can manage your affairs if you become incapacitated.
You’re planning to be away for an extended period and need someone to handle your financial or legal matters in your absence.
You’re undergoing surgery or facing a medical procedure where there’s a risk of incapacity.

4. Can I Change or Revoke a Power of Attorney?

YES! you can change or revoke a Power of Attorney at any time, as long as you have the mental capacity to do so. To revoke your Power of Attorney, you should provide a written notice of revocation to your attorney and any relevant institutions or parties that were relying on the Power of Attorney. You may also wish to create your new Power of Attorney if your circumstances or preferences change.

5. What Happens if I Don’t have a Power of Attorney?

If you don’t have a Power of Attorney and become incapacitated, your loved ones may need to go through a lengthy and expensive legal process to be appointed as your guardian or administrator at the tribunal. Having a Power of Attorney in place ensures that your affairs are managed by someone you trust, according to your preferences.

Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.

Medical Treatment Decision Maker(s)

A Medical Treatment Decision Maker is someone you appoint to make medical and healthcare decisions on your behalf if you are unable to do so yourself. This person will be responsible for communicating with doctors, understanding your medical treatment options, and ensuring that your wishes are followed when it comes to your health and medical care.

1. Who Can I Appoint as My Medical Treatment Decision Maker?

You can appoint anyone you trust to be your Medical Treatment Decision Maker, such as a family member, close friend, or partner. It’s important to choose someone who understands your values and wishes regarding medical treatment and who is willing and able to act on your behalf during potentially stressful situations.

2. What Decisions Can a Medical Treatment Decision Maker Make?

A Medical Treatment Decision Maker can make a wide range of healthcare decisions on your behalf, including:

Approving or refusing medical treatments or procedures.
Making decisions about surgery, medication, or life-support measures.
Consenting to or declining participation in medical research.
Deciding on admission to hospitals, nursing homes, or other care facilities.

The decisions they make should align with your preferences and best interests, as you have expressed them.

3. When Does the Role of a Medical Treatment Decision Maker Come into Effect?

The role of a Medical Treatment Decision Maker comes into effect only when you are unable to make or communicate your own healthcare decisions. This could be due to unconsciousness, severe illness, or incapacity resulting from an accident or other medical conditions.

4. Do I Need to Document my Medical Wishes?

Yes, it is important to communicate with your decision maker about your preferences for specific treatments, life-support measures, and end-of-life care.

5. Can I Change or Revoke my Medical Treatment Decision Maker?

Yes, you can change or revoke your Medical Treatment Decision Maker at any time, provided you have the mental capacity to do so. To make a change, you should complete a new appointment form and notify any relevant healthcare providers. It’s important to communicate any changes clearly to avoid confusion during a medical emergency.

6. What Happens if I Don’t Appoint a Medical Treatment Decision Maker?

If you do not appoint a Medical Treatment Decision Maker and you become unable to make decisions for yourself, a legal guardian or a person close to you may be appointed by VCAT to make decisions on your behalf. This process can be time-consuming, stressful for your loved ones, and may not result in someone who knows your wishes being appointed. Appointing a Medical Treatment Decision Maker in advance ensures that someone you trust will be there to advocate for your healthcare preferences.

Seek the right legal advice contact Shan Lawyers and we will make it as easy as possible for you with our expert guidance and support. Email [email protected] or call 03 8589 2762.