Wills & Estates
If you require solicitors in Bunbury, Busselton or Margaret River to draft a will, or assist in estate planning you have found it in the law firm of Peter May McAuliffe Legal. Powers of attorney, living wills, probate and even disputed wills can all be managed by the solicitors at Peter May McAuliffe Legal.
If you have property in your own name, you need a Will to properly set out your wishes for distributing your estate upon your death. Peter May McAuliffe Legal is able to give you the appropriate advice about your options and to prepare a Will for you. Special rules and documentation apply to superannuation funds.
You must be 18 years or older to make a Will and have legal capacity which means that you must be able to understand the nature and effect of the document you are signing, the nature and extent of your estate, and the people who may have a legitimate claim upon your estate.
In Western Australia, a Will is revoked by marriage and by divorce. If either of those events occurs, your Will is void and you will need to prepare a new Will at that time.
Peter May McAuliffe Legal can assist you to make a Will in contemplation of marriage or divorce which will overcome that issue.
If you pass away without a properly prepared Will, it can be expensive to deal with the legal issues that arise in administering the estate. If you do not have a Will, the estate will pass to family members set out in legislation called the Administration Act and may include one or more of your spouse (including a separated spouse), de facto partner, children, parents, siblings, nieces and nephews, whether or not you want those people to benefit.
When you make a Will you will appoint a person to administer the estate after you pass away (the Executor), and specify who will receive the estate (the beneficiaries).
Drafting your own Will without appropriate advice may mean that the Will is ineffective by failing to:
- Deal with all of your assets, creating a partial intestacy and difficulties in administering the estate;
- Execute the Will properly in the presence of two independent witnesses;
- Appoint an Executor (or an appropriate Executor);
- Set out clearly your wishes as to the disposition of your estate.
Wherever you are in the south west region, it is important to receive professional advice about your Will to ensure that it accurately reflects your circumstances and that it will benefit your loved ones.
Living Wills, otherwise known as “Advance Health Directive”, ensure that you retain the right to make decisions about your own health care and treatment.
You can prepare one at any time, even when you are fit and well. You must be at least 18 years of age and have capacity i.e. you are capable of understanding the nature and effect of your living will.
A living will will only come into effect if you are unable to make and communicate your own judgments about treatment later on.
If you do not have a living will, a treatment decision will be made on your behalf in the event that you are unable to make the treatment decision for yourself.
‘Treatment ‘includes medical, surgical, palliative, dental and other health care.
The treatment decision will be made by (in the following order of priority) your Enduring Guardian (if you have appointed one), your Guardian (if one has been appointed for you), or by a person responsible for you (such as your spouse, parent, child, sibling or unpaid carer)
Peter May McAuliffe Legal can assist you to prepare your living will, as well as assisting you in relation to any guardianship relationships that you may wish to create.
Estate planning is the process of anticipating and arranging, during a person’s life, for the disposal of their estate. Estate planning can be used to eliminate uncertainties over the administration of an estate and to maximize the value of the estate by reducing taxes and other expenses.
The ultimate goal of estate planning can be determined by the specific goals of the client, and may be as simple or complex as the client’s needs dictate.
Estate planning is particularly important for managing business assets and generational change for farming businesses. Taxation issues need careful planning with generational change and at Peter May McAuliffe Legal we are very focused on all estate planning being as tax effective as possible.
Peter May McAuliffe Legal can assist you with all aspects of your estate planning, including business related estate planning, if you have a business that you intend to pass to someone else in time.
Appointment of Executors
At Peter May McAuliffe Legal we are prepared to accept the appointment of one of our solicitors as an executor of your estate. Our solicitors have extensive experience in all aspects of estate management from the granting of the initial probate, identification and collection of assets, payment of all claims upon the estate through to the final winding up and taxation affairs of the estate. Our fees as executors are highly competitive by comparison with those charged by professional executor companies.
Having an executor who is familiar with your business and is often well known to members of your family and the potential beneficiaries of your estate can help relieve much of the stress and heartache that is often felt during these difficult times.
Powers of Attorney
Peter May McAuliffe Legal can assist you to draft an Enduring Power of Attorney, or can assist you if you have any queries regarding an existing Enduring Power of Attorney.
An Enduring Power of Attorney is a document by which you appoint a person of your choice to make financial and property decisions on your behalf if you become ill, have an accident, are away from the State or country or for any other reason.
Most importantly you can appoint someone you trust to make decisions for you if you lose legal capacity in the future.
The person appointed is called your attorney. An Attorney can make any decisions in relation to your finances or property so long as it in your best interests. This may also be applied to some family trusts and companies. A person must be over the age of 18 years and have mental capacity to execute an Enduring Power of Attorney. Importantly, you cannot make an Enduring Power of Attorney on behalf of another person if they have lost legal capacity.
At Peter May McAuliffe Legal we can also assist you with any Power of Attorney needs. A Power of Attorney is a slightly different power to an ‘Enduring’ Power of Attorney. A Power of Attorney ceases to be of effect when the person giving the power (the donor) loses legal capacity whereas, in contrast, an Enduring Power of Attorney endures even through that person has lost legal capacity.
An Enduring Power of Attorney can be revoked by the donor at any time so long as he or she has legal capacity. Peter May McAuliffe Legal can also represent you in the State Administrative Tribunal, which is a body that can also make orders to revoke an Enduring Power of Attorney.
Probate and Administration of Estates
Probate refers to the legal matters following the death of someone, where the person who dies leaves a will. An executor of a will has to apply for a grant of probate in the probate division of the Supreme Court of Western Australia.
Probate is an order from the court stating that the deceased’s will has been proved valid with authority to administer the deceased’s estate being granted.
The Supreme Court in its probate jurisdiction has the power to make orders in relation to the validity of the will, the appointment of an executor and the administration of a deceased estate.
Where an executor is applying for a grant of probate there are a number of formal procedures which need to be followed. An affidavit has to be drafted in support of the executor’s application.
Peter May McAuliffe Legal has extensive experience assisting executors to apply for the grant of probate.
When a person dies intestate (leaving no will) an application for letters of administration must be filed at the probate division of the Supreme Court of Western Australia.
Distribution of the estate is governed by the Administration Act and can be quite complex.
If you are an executor or an interested party and wish to discuss any aspect of the probate or letters of administration process, please contact Peter May McAuliffe Legal.
Disputed Wills and Inheritance Disputes
If you have been left out of a will, or the disposition in the will is unfair, you may have a right to challenge the will. If there is no will and the estate is being managed in accordance with the rules of intestacy, you may have a right to challenge the distribution to obtain a greater share of the estate.
There are a number of factors that have to be taken into account while determining your rights such as your: relationship with the Deceased, the size of the Estate, your financial circumstances and others named in the will including who is financially dependent upon you or your current health status.
Strict time limits apply where a will is disputed. Therefore, we recommend that you make an appointment to see a solicitor at Peter May McAuliffe Legal’s Margaret River, Busselton or Bunbury office as soon as your circumstances require.
These can be complicated claims, often involving litigation in the Supreme Court of Western Australia if it is not resolved beforehand. At Peter May McAuliffe Legal our principal Mark McAuliffe has extensive experience in Court representation including the conduct of inheritance disputes in the Supreme Court.
Executorships & Estate Administration
Mark McAuliffe regularly accepts the appointment as an executor of estates. In many families, this enables an independent person to ensure that your estate is administered the way you want it to be administered. In families where there are unfortunately competing interests between different family members, an independent executor can save the family a lot of heartache. An independent executor administers the estate strictly in accordance with the terms of the will, and the law. In blended families, where disputes are quite common, having an independent executor often ensures that your wishes are carried out, and that your children and heirs are adequately protected, without the concern that some other person is not necessarily acting in their best interests.
Whether we hold an appointment as an executor, or as your solicitors assisting your duly appointed executor, we provide a full service in respect of estate administration. We guide you through the process of obtaining a grant of probate and/or letters of administration. We assist in the identification and collection of assets, the payment of your creditors, finalising your taxation affairs, through to the ultimate distribution of your estate. If your estate planning includes testamentary trusts, or your beneficiaries include minors who are the subject of a trust, we have extensive experience in assisting you in administering these structures, and ensuring that your wishes are fully carried out.