WILLS, ESTATE PLANNING & SUCCESSION LAW
WILLS, SUCCESSION, POWERS OF ATTORNEY AND ENDURING GUARDIANSHIPS
Wills can be made, amended and remade any number of times during the life of the person making the will (testator).
In drafting wills there are many important considerations, including:
Appointment of an executor (and an alternative) to carry out the provisions of the will.
Avoiding potential claims by persons who have been left out and may feel entitled.
Provisions in anticipation of beneficiaries who may not survive the testator.
Establishment of trusts for beneficiaries, minors and others.
Inclusion of property that may not exist at the time of making the will but come into existence before the death of the testator.
Marriage will invalidate a will, but divorce may or may not. In these cases it is always a good idea to do a new will.
Assets located outside the Australian State of residence and abroad may be subject to the laws of that jurisdiction. Testators should be aware of how foreign jurisdictions may impose their own laws on the property in those jurisdictions contrary to the intention of the testator, and provisions for application of Australian law as far as possible to ensure the will applies.
Succession across borders
Subsequent to the demise of a person attention needs to be paid to assets, their location and distribution.
There are no death duties in Australia but there may be death duties applicable in foreign jurisdictions that apply to property in those jurisdictions.
There may also be requirements in other countries for the application of laws of succession to allow property to be transferred or realised and proceeds transferred after the death of the testator.
Succession in civil law countries, including France, like conveyancing of real estate, is reserved to notaries (“notaires”).
Again, all documents need to be accompanied by a certified translation into French, a certificate as to law applicable in Australia in French (“certificat de coutume”) and all documents legalised through and Australian public notary.
Power of attorney and enduring guardianship
With increased longevity these documents take on increased importance.
An enduring power of attorney authorises a person (“attorney”) to act on behalf of another at such time and in such ways as stipulated in the power of attorney itself. For an enduring power of attorney this permits the attorney to continue to act even after the person giving the power is no longer able to make decisions for him/herself. An enduring power of attorney must be explained to the person giving that power by and executed in front of a lawyer.
An enduring guardianship is to give the power to decide on living and medical needs to the guardian, in the event of the person giving that power no longer having capacity to make such a decision him/herself. Again, explanation and execution provisions apply.
To give these powers, the person giving them must be in position to make these decisions. For an aged person it is a good idea to obtain a medical opinion from the relevant doctor as to capacity.
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