WILLS AND ESTATES

Since day dot, Denise has been helping clients with their succession planning, and to manage the Estate after a loved one passed away. She has passed her immeasurable skills and experience on to the team, and together we pride ourselves on helping our clients tackle these difficult tasks.

It is perfectly natural to put off writing a Will, planning your estate, or putting into place an Enduring Power of Attorney or Advance Health Directive. No one wants to dwell too long on the purpose of any of these documents.

But as solicitors who work with grieving and stressed families, we cannot stress enough that drafting a Will and planning for illness and incapacity is a gift that you give to your loved ones.

We can also help you to look after all of the accounts, assets, debts, tax etc of a person (called administering the Estate) after someone has passed away, and will guide you through the process of contacting the various entities, managing the responsibilities and obligations of being an Executor or Administrator, and distributing an Estate in accordance with the terms of a Will or the law.

At Hensen Maxwell Solicitors, we also have experience in assisting Executors to respond to challenges to the validity of a Will, or to respond to a person seeking a provision, or better provision, be made to them from the Estate. We have also acted for beneficiaries or other interested persons who are bringing such challenges. These matters are often complex, and fraught with issues (both legal, and interpersonal or emotional) and we have found that having the support of the right legal team with you can make all the difference.

No matter what the circumstances are, we will always ensure that we are in our client’s corner, and we are strong advocates for our clients.

OUR WILLS AND ESTATES TEAM

DENISE MAXWELL | Legal Practice Director

Denise has extensive experience practicing in commercial law. She has a special interest in assisting in the purchase and sale of business interests, and the negotiation of commercial leases. She also has nearly three decades assisting members of the LGBTIQ community to reach fair solutions to all of life’s laws.

“I love helping my clients find a way through the maze of the law to an outcome. My experience tells me that there is always a way through – you just need the right guide. I love being that person for my clients.”

(07) 3892 4329
EMAIL DENISE

TAMARA HENSEN | Legal Practice Director

 

Tamara is the Head of Family Law at Hensen Maxwell Solicitors, and also helps clients in the Wills and Estates field. Her compassion brought Tamara to Family Law, and this is the quality that she draws on most as she helps guide families through difficult transitions.

“I help clients through what can be the worst time of their life. I offer my clients the wisdom of other people’s experiences in the same journey, combined with the knowledge that they are not going it alone.”

 

(07) 3892 4329
EMAIL TAMARA

LEONIE LETIZIA | Senior Associate

 

Leonie is our dedicated Wills and Estates lawyer, and solely practices in these areas here at Hensen Maxwell Solicitors. She is admitted as a solicitor in Queensland.
Leonie has extensive experience in the legal profession having first practiced in other areas of law and working for government. Over the last few years, Leonie has found a love for Wills and Estates and has honed her skill and practice in these areas.

“I have a passion for working in Wills and Estate. I enjoy assisting my clients prepare their succession plan and navigate the difficult process of estate administration after the loss of a loved one, in a way that is both compassionate and straight forward. Providing my clients with the comfort and reassurance that their estate will be dealt with according to their wishes upon their passing is very rewarding.”

 

(07) 3892 4329
EMAIL LEONIE

WILLS AND ESTATES FAQS

Estate planning is an important part of protecting your family’s future. Careful estate planning will reduce stress and hardship for your loved ones when you pass away.

For example, at Hensen Maxwell Solicitors we can advise you on the making of binding death benefit nomination that determines how your superannuation is to be paid. This often requires careful consideration, as there are risks of claims being made on your estate and superannuation funds often have different rules. This is a particularly difficult area if you have a self-managed superannuation fund.

A Will is a legal document that sets out:

  • Who will look after the administration of your estate after you pass away.
  • Any particular funeral arrangements you would like.
  • How your property is distributed after you pass away.
  • If you have children under the age of 18 when you pass away, who will look after them.

If you pass away without a Will:

  • Your Estate may not be distributed according to your wishes. Without a Will, how your Estate is distributed is dictated by legislation.
  • You won’t have appointed an executor. This means a family member or friend may need to apply to the Court to be allowed to administer your estate, or the Public Trustee may step in and charge fees for doing so, leaving less property for your loved ones. It also means that the person looking after your Estate may not be the person you would have wanted to look after it.

Drafting a Will is a simple process that does not take very much time at all. We pride ourselves on helping make the process easy, smooth and still ensuring that you’ve considered all required aspects.

Our aim is to ensure that making your Will is a simple and stress-free process. Generally, you will come into our office to discuss what you want to achieve, we will then prepare your will, and provide you with a draft for your review. We will discuss the terms with you and answer any questions that you may have. Once you are satisfied with your Will, you attend our office and sign the document.

There is a wide range of matters that can be covered by a valid Will aside from dealing with how particular assets are distributed.

Estate administration is the process of dealing with the assets and liabilities (the Estate) of a person who has passed away. A person who administers an estate is known as either an Executor or an Administrator. An Executor is appointed in a Will, if there is no Will then the Administrator needs to be appointed by the Court.

When a loved one has passed away and has appointed you to be the executor of their Will, we understand that it can be difficult to deal with the legalities, process and requirements of administering the Estate. We are here to assist you regardless of the situation to ensure that the Estate administration is completed in a timely and efficient way.

Our biggest pieces of information at the initial stages are:

  • Almost all organisations will need a copy of the Death Certificate, but the Death Certificate sometimes takes a few weeks to arrive. This means that you may not be able to do a lot in the first few weeks, and we recommend you take the time to look after yourself and your friends/family in this difficult time.
  • You should also consider if any direct debits or payments are to be made to/from the deceased person’s bank account as there should be no transactions on their account after they’ve passed away.

It is important that you obtain professional advice to understand if a Grant of Probate or a Grant of Letters of Administration is required to be obtained from the Court. Estate administration can be complicated, there can be problematic interested parties and/or beneficiaries, numerous assets or liabilities involved, or there may be informal testamentary documents.

Challenging a Will is means calling into question the validity of a Will. This may be because the person who made the Will lacked mental capacity or knowledge of the impact of the Will, or they were unduly influenced when making the Will.

If you doubt the validity of the Will, then you should make this known to the executor as soon as possible after the deceased’s death and preferably prior to a Grant of Probate being obtained from the Court. You may wish to lodge a caveat with the court to prevent the Grant being obtained without prior notification to you.

The court will consider all available evidence regarding the mental capacity of the deceased when the Will was executed, and the conduct of family members or friends, as well evidence from lawyers, doctors and forensic specialists.

If you have any concerns about the validity of a loved ones Will, please do not hesitate to contact our office to discuss this further.

Contesting a Will occurs when an eligible person is unhappy with the bequest left for them under the Will (or if they were excluded entirely) and wishes to seek more from the Estate. This is commonly called a family provision application.

The Succession Act 1981 (Qld) instructs that only “eligible” people can make such a claim. The following people can apply for further provision from the Estate:

  1. spouse of the deceased (including de facto spouses);
  2. child or children (including a stepchild, adopted child or a child born outside of a marriage); and
  3. dependants (a person supported by the Deceased at the time of their death).

The court can order any provision it thinks appropriate, taking into account factors such as the financial position of the applicant, the size of the estate, and the nature of the relationship of the deceased and the applicant.

There are strict time limits that apply to making a family provision claim. Please contact Hensen Maxwell Solicitors to discuss your situation as soon as possible.

An EPoA is a document that sets out:

  • Who you appoint to make decisions on your behalf while you are alive.
  • Whether your attorney has power to make financial decisions.
  • Whether your attorney has power to make personal or health decisions
  • Allows you to give views/wishes or instructions to your attorney. However these sections are optional, so you don’t need to include these things unless you have particular views/wishes or instructions.
  • If you want your attorney to notify someone or multiple people when exercising their powers, who they are to notify, about what, and in what circumstances.

An Enduring Power of Attorney ensures that the person you want to be making the decisions has the power to do so, should you become incapable of making those decisions for yourself.

If you do not have an Enduring Power of Attorney, your friends or family may need to make an application to QCAT to get the power to make personal or financial decisions for you.

An Advance Health Directive is a document that:

  • Comes into effect in specific circumstances that can broadly be described as when you are nearing or at the end of your life (e.g. end stages of cancer).
  • Allows you to give legal directions to your doctor about your healthcare in circumstances when you may be unable to give these directions yourself.
  • Most notably, the Advance Health Directive allows you to nominate whether or not you would like to receive life-sustaining treatment in certain circumstances.

You may have heard of a ‘do-not-resuscitate’ or a ‘DNR’ – the Advance Health Directive is the Queensland version of this document.

The purpose of an Advance Health Directive is to decide in advance about health treatment to ensure that the right decision for you is made. It is often a document of great support to your loved ones, as they can be sure about what you wanted to happen when you are unable to communicate this yourself.

If you want a trusted team to help with your Wills and Estates matters, get in touch with Hensen Maxwell Solicitors.