If I don’t have a Will everything goes to my spouse and children, doesn’t it?

If you pass away without leaving behind a valid Will, this means you will have died “intestate”. It will then be the provisions of the Succession Act 1981 (Qld) which decides what happens to your Estate rather than your own wishes and intentions. The provisions of the Succession Act also set out who will take responsibility for administering your Estate. If you have one, your spouse will receive the first $150,000.00 of your Estate together with the household chattels, and then a share of the rest of your Estate depending on how many children you have, and those children will share the balance of the Estate with your Spouse.

 

If you don’t have a spouse or children then your parents, brothers, sisters, nephews and nieces are the next in line. Most of us work hard during our lives to accumulate our assets, we are sure that you would prefer to provide for and control how those assets are dealt with on your death. We would be pleased through guide you through the process of preparing a Will and Estate Plan that ensures your wishes are observed.

Bank Accounts and Grants of Probate

We understand that there is a change of practice amongst the Banks in Australia as to when they will require a Grant of Probate for the Administration of an Estate. It was previously the case that if a deceased person held a number of Bank Accounts with a Bank, with those accounts being held in different states, that the Bank would only require a Grant of Probate in one state to release all of the different Bank Accounts.

 

However, there appears to have been a change in practice and we understand that the banks are now starting to insist upon a Grant of Probate being obtained in each different state in which a Bank Account is held. Unfortunately this will result in further delay and increased cost in the Administration of Estates when Grants of Probate are required.

Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?

In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

· The origin of the electronic communications;

· The destination of the electronic communication;

· When the electronic communication was sent;

· When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

· The time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or

· The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

o The electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.

Why should I review my Will?

Once we have completed a Will for a client we always advise them to keep the Will under regular review. There are numerous reasons why it might be necessary to amend the terms of your Will, perhaps the most obvious is simply that you change your mind about what you want to happen to your Estate. You may acquire more assets or you may sell some assets, you may wish to appoint a different person as the Executor of your Estate, a Beneficiary of your Estate may experience financial difficulty or become bankrupt, divorce or family breakdown may occur. Any or all of these factors may well prompt you to want to change the terms of your Will.

It is important to realise that unless and until you do actually change the terms of your Will then the Will that you have already written will apply in the event of your death. For complete and comprehensive service in relation to Wills & Estates contact Ian Field at Aylward Game.

Attorneys Must Go Through Hoops

Completing an Enduring Power of Attorney Appointing another person to take decisions and act on your behalf is a sensible step that we frequently recommend to clients. Once the documents have been completed however, it is not the end of the story. If your attorney takes steps on your behalf, or particularly signs documents on your behalf, the Attorney needs to be aware of the requirements of the Powers of Attorney Act, in particular the need to make it clear on any documents signed that it has been signed in the capacity of Attorney.

A recent case in the District Court in Queensland involving former basketball players, Shane Heal and Matt Neilsen, dealt with exactly this point. Shane Heal signed a document as the Attorney for Matt Neilsen but did not make it clear that he signed as an Attorney. Whilst in that instance the Court decided that more general common law principles of agency were called into play to make the signature on the document valid, the Court did decide that it was not valid under the Power of Attorney Act.

Attorneys are required to ensure that they comply with the requirements of the Power of Attorney Act and if you have any doubts as to what those requirements are then as an Attorney you should obtain your own independent advice.

The Importance of a Will

The recent newspaper stories regarding the case in New York of Mr Roman Blum highlights the importance of writing a Will. Mr Blum was a Jewish survivor of the holocaust in the second world war, and after the war he moved to the United States and built up a substantial fortune in the region of $40 million dollars. Mr Blum passed away in January 2012 and it appears that he did not leave a Will. Despite extensive searches in America and around the world, it now appears that Mr Blum also had no living relatives, and therefore the government is going to be the beneficiary of his estate.
 
The situation in Queensland would be very similar. If someone passes away without a Will then the Succession Act sets out a formula for distribution of the estate between certain relatives who survive the person who has passed away (which may of course not be the distribution that you would choose if you wrote a Will) and if there are no such surviving relatives then the estate will go to the government.

To ensure that your estate goes to the people that you wish to benefit, in the shares that you wish them to receive, is it vital to ensure that you have an up to date Will.

Attorney’s Power to substitute

An interesting point to remember is that when a Principal in a General Power of Attorney appoints an Attorney, the Attorney can’t delegate his or her powers to another person by appointing a substitute Attorney unless the powers contained in the General Power of Attorney expressly authorised the Attorney to do so.

There are procedures to follow in the event that that occurs particularly if actions are taken by the substitute Attorney that involves dealing with real property.

 
The case is different in the circumstances where the Principal has appointed an Attorney under an Enduring Power of Attorney. An Enduring Power of Attorney is that form which is more commonly used estate planning where for example a husband and wife each appoints the other as their Attorney such that each Enduring Power of Attorney operates as a “Living Will” for the Principal. An Enduring Power of Attorney can’t contain a power whereby the Attorney is authorised to appoint a substitute.