Making a last Will and testament in Australia is an important part of estate planning. It is obviously the first thing that almost everyone will think of, however, as you begin to look into the subject of Australian Wills other terms for estate planning will start popping up all over the place and this can make matters a bit confusing. Wills in Australia are obviously about dealing with what happens to property and loved ones after death, yet they cannot deal with any important life changing issues that may occur during a person’s lifetime. To cover this area of estate planning other legal documents with various names are used. When it comes to a will and testament-Australia and other matters of estate planning the areas to be aware of are:
- How to Make a Will
- Inheritance Law – Australia
- Contesting a Will
- Power of Attorney
- Enduring Power of Attorney; and
- Living Wills
How to make a Will in Australia
There are a variety of ways for making a Will in Australia. You can use a lawyer in Australia or Public Trustee; an Australian Wills online service, Will kits-Australia coverage or an Australian Will template. There is a set format and procedure that has to be legally adhered to irrespective of what approach you use to create your Australian Will or whatever type of will and testament you need. These procedures are explained to you and adhered to in each of the approaches, except the Will template where you will be required to do research and read up about them first before writing a Will.
If using Public Trustees, these operate under state or territory government authority and offer independent and professional services. Their fees are government regulated.
Inheritance Laws – Australia
In the absence of a Will in Australia the law in the state or territory lived in dictates how an estate is managed (below). The government uses a deceased individual’s assets to pay any outstanding bills and taxes before distributing the remainder using a specific formula. In some territories some family members receive more than others. Should the deceased have no living relatives then all assets are paid to the state government.
Inheritance law in Australia varies for each state or territory with the key legislation covering Australian Wills being:
Southern Australia Wills Act 1936
Western Australia Wills Act 1970
Australian CapitalTerritory Wills Act 1968
Family Provision Act 1969
Domestic Relationships Act 1994
Contesting a Will in Australia
A revoked Will is a Will that has been declared void. A Will could be revoked, in full or in part if it is incorrectly written, proper procedure is not followed or if someone had grounds for contesting a Will in Australia. If you get married, the existing Wills of both parties are automatically revoked, unless made in contemplation of marriage.
When it comes to successfully challenging Wills in Australia there has to be sufficient grounds for contesting and you must challenge it through the Supreme Court in Australia. For example, simply being unhappy with the Will is not grounds for contesting. There needs to be something legally wrong with it and advice from lawyers in Australia that specialize in these matters will identify this. Before spending money needlessly to contest a Will it would make sense to view the division of the estate under inheritance law-Australia, because irrespective of the outcome you may never be destined to inherit anything anyway.
The Australian probate process takes place after a persons’ death and is the process of administering the estate. In Australia an executor/trustee of a Will is the person or people nominated in a Will and testament to deal with the administering process. Before the executor(s)/trustees can begin the administering process they have to apply for a grant of probate to the Supreme Court in Australia.
Power of Attorney-Australia
Enduring powers of attorney in Australia are about assigning powers to others to act on your behalf whilst you are alive.
Powers of attorney depend on which state or territory you are in: they can refer to just financial powers, or they might include broader guardianship powers. You will need to check with your lawyer or Public Trustee.
Generally speaking, there are different types of power of attorney:
- A general power of attorney in Australia is where you appoint someone to make financial and legal decisions for you, usually for a specified period of time, for example if you’re overseas and unable to manage your legal affairs at home. This person’s appointment becomes invalid if you lose the capacity to make decisions for yourself.
- An enduring power of attorney in Australia is where you appoint a person to make financial and legal decisions for you if you lose the capacity to make your own decisions.
- A medical power of attorney in Australia enables others to make only medical decisions on your behalf if you become unable to do so yourself.
You can prepare a few other documents to help your legal appointees and family as you grow older, including:
- An enduring power of guardianship that gives a person the right to choose where you live and make decisions about your medical care and other lifestyle choices, if you lose the capacity to make your own decisions.
- An anticipatory direction records your wishes about medical treatment in the future, in case you become unable to express those wishes yourself.
- An advance healthcare directive (or living will) documents how you would like your body to be dealt with if you lose the capacity to make those decisions yourself.
Living Will – Australia
A living Will (or advance health directive) in Australia is about dealing in advance with matters of medical treatment should you be physically or mentally incapacitated such that you could not make your wishes known when it matters.
Under the common (or judge made) law, it is possible to make a living will in Australia. This is a general term for a written statement made in advance regarding the person’s wishes with respect to future treatment.
An Advance Health Directive is a specific type of “living will” in Australia which is recognised by legislation. The Act enshrines the enforceability of the AHD, subject to certain safeguards, and provides protections for health professionals who take treatment actions in good faith.