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Estate Planning – wills, enduring powers of attorney and guardianship

The experienced and professional estate lawyers at HFM Legal can provide you with assistance on all matters relating to estate planning and asset protection as well as related revenue and superannuation issues.

We provide innovative, commercially focused estate planning advice and documentation, including:

wills
enduring powers of attorney
enduring powers of guardianship
advanced health directives
capital gains tax and transfer duty advice
executor services
risk management advice and strategies to protect estate assets from potential disputes and creditors
strategies to minimise estate assets and tax
succession of estate assets in blended families
strategies to deal with superannuation assets in the event of death
business succession planning and shareholder arrangements
trust planning strategies (for duty exemptions)

What is a will?

A will is a legal document which stipulates who is to receive your assets upon your death.

What happens to my assets if I die without a will?

If you die without a will you are said to have died intestate.

In Western Australia, if you die without leaving a valid will, your estate will be distributed in accordance with the provisions of a statutory will which is set out in section 14 of the Administration Act 1903 (WA).

What is an executor?

An executor is a person nominated by the will maker to carry out the will maker’s testamentary wishes.

What is the role of an executor?

The executor is responsible for the Deceased person’s funeral arrangements, locating the original will, gathering up the assets, paying any debts and distributing the estate in accordance with the terms of the will.

The executor is also responsible for preparing and lodging individual and estate tax returns and obtaining a tax clearance from the Australian Taxation Office.

Who can witness a will?

A will must be signed in the presence of two adult witnesses who should each state their full name, address and occupation on the signing page. In Western Australia a person who is unable to see and attest that the will maker has signed a document cannot act as a witness to a will. It is good practice that the witnesses are independent from the will maker. For example, beneficiaries, potential beneficiaries and relatives should not act as witnesses to the will.

What is an enduring power of attorney?

An enduring power of attorney is a legal agreement that enables a person to appoint a trusted person (or persons) to make financial and/or property decisions on their behalf. It is an agreement made by choice that can be executed by anyone over the age of 18, who has full legal capacity. It will continue to operate even if the donor loses full legal capacity.

‘Full legal capacity’ means that the person must be able to understand the nature and effect of the document they are completing and the nature and extent of their estate.

What is an enduring power of guardianship?

An enduring power of guardianship is a legal document which enables a person to appoint someone or several people (who they trust and knows them well) as an enduring guardian to make personal, lifestyle and medical treatment decisions when they are unable to make or communicate those decisions for themselves.

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