Wills and Power of Attorney (POA)
People do not like thinking about death and the effects it has on those they leave behind, but it is something that has to be faced eventually. It is natural that you should wish your property and assets to pass on your death to whomever you choose.
By making a Will you can ensure that your assets go to those you wish should have them. Buying or Selling a property is an excellent time to think about a new Will or reviewing an existing Will.
There are some assets that cannot be given away in your Will (eg. property you hold in joint names usually passes automatically to the other joint owner) but most of your property can be dealt with by a Will.
What is a Will?
It is a legal declaration of how you wish to dispose of your property on your death. In order for it to be valid it must comply with certain requirements.
Who can make a Will?
Generally speaking, anyone over the age of 18 and of sound mind.
What makes a Will valid?
It must be in writing, should appoint someone to carry out the instructions (an executor) and dispose of possessions/property.
It must be signed by the person making the Will (the testator), or signed on the testator’s behalf in his or her presence and by his or her direction. This must be done in the presence of two witnesses who then sign the Will in the presence of the testator.
Who can be a witness?
- Is not blind
- Is capable of understanding the nature and effect of what they are doing
However, a witness should not be:
- A beneficiary in the Will; or
- Married to, or be the civil partner of, a beneficiary
In these circumstances the Will remains a valid and legal document, but the gift to the beneficiary cannot be paid.
What happens if a Will is not valid?
It is disregarded and the deceased person’s property is distributed in accordance with the intestacy rules
What if I don’t make a Will?
If you don’t leave a valid Will your estate will pass in accordance with the intestacy rules. The intestacy rules set out who is entitled to inherit from your estate if you don’t leave a valid Will.
If you are married or are in a civil partnership, the first person entitled to your estate under the intestacy rules is your spouse/civil partner, but he or she will not necessarily inherit the whole of your estate.
Can I change my Will?
Yes you can and it is advisable that you review your Will regularly to ensure that it still meets your requirements as your circumstances change, otherwise problems or complications can arise.
Can I cancel my Will?
Yes, this is known as revoking your Will. You may revoke your Will at any time, by destroying it, or by making another Will cancelling all previous Wills.
Where should I keep my Will?
Your Will may not be required for many years after you make it so it is essential that it is stored safely and that it can be found after your death.
The main storage providers are:
- Solicitors, eg bytherules
- Banks (charges apply) (WARNING: do not store your Will in your safety deposit box. The box can’t be opened until Probate is granted and Probate can’t be granted without the original Will)
- Keep it yourself (but make sure your executors know where to find it)
Some key points to remember:
Be aware of what Will happen to your money and possessions if you die without leaving a Will. If the provisions on intestacy are not what you want, make a Will.
Review your Will from time to time to ensure it still reflects your wishes and caters for your current circumstances.
Do not attempt to change your Will by simply altering it or writing on it.
Ensure that your Will is kept somewhere safe, and that your executor(s) know where to find it.
How much will it cost?
Single Wills are $330 inclusive of GST
Dual Wills (partners) are $440 inclusive of GST
Remember, buying or selling your property is the perfect time to make a Will. bytherules will make it incredibly easy for you.
Power of Attorney
What is a Power of Attorney?
A Power of Attorney is a document in which one person (the Donor) appoints another person (the Attorney) to act for him or her. There are many reasons why you might want to appoint someone else to look after your financial or health affairs. For example, if you are going to be out of the country for a lengthy period of time, you might want someone to do your banking while you are gone. If you are approaching old age, you may want to give a Power of Attorney to a person you trust so that he or she can manage your property or your medical care for you. You can choose to allow financial decisions or medical/health decisions or both.
What are the differences between enduring and ordinary Powers of Attorney?
There are two major types of Powers of Attorney: ordinary and enduring.
An ordinary Power of Attorney is only valid as long as the Donor is capable of acting for him or herself. If the Donor dies or becomes mentally incompetent, the Power of Attorney is invalidated.
An Enduring Power of Attorney remains valid even if the Donor later becomes mentally incompetent. (Note: the Donor must be competent at the time the Power of Attorney is made.)
In either case, the Power of Attorney becomes invalid when the Donor dies. A Power of Attorney cannot be used to bequeath property upon the death of the Donor.
Will a Power of Attorney still be valid after the Donor dies?
NO. Generally Speaking, when a person dies, the Executor (also called a “Personal Representative”) appointed in the person’s Last Will and Testament takes control of the deceased person’s property and distributes it according to the instructions in the Will. If there is no Will (or if the Will is invalid), each jurisdiction has intestacy legislation (see our Will description about Intestacy) that distributes the deceased person’s property to his or her relatives according to a set of rules. A court generally appoints an Administrator to oversee this process. Unfortunately, the deceased person’s wishes are not taken into account during the process (which can be very lengthy), since they have not been formally expressed in the proper manner with a will.
How much does a Power of Attorney cost?
A Power of Attorney prepared by bytherules is $165 inclusive of GST
How do I apply?
You can apply when completing your initial documents when we look after your conveyancing, or simply complete the application form below