What We Offer

 

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  • Over 50% of the Australian adult population has no will.
  • Making a will lets you decide how your assets are to be distributed and also how to make funeral and other arrangements.
  • If you die without having made a will, your assets pass according to a complicated legislative formula to your next of kin and not necessarily in accordance with your wishes.
  • To make a will, you must be 18 or over and have mental capacity.
  • A will comes into effect upon your death, and is cancelled by divorce or marriage.
  • Once made, a will can be changed by a codicil (i.e. an amending document) or by replacing it altogether.
  • A will should be kept in a secure place known to the executor and family members and reviewed at least every 4 years.
  • At Leaker Partners we can provide you with advice on the most appropriate will to suit your circumstances.
  • Estate planning is a more complex issue and can go beyond just making a will. There may be assets held in discretionary trusts, corporations or in superannuation. Such assets are not normally part of your estate directly.
  • Consideration is therefore necessary to deal with and manage those assets when you are no longer able to.
  • You may consider the creation of testamentary trusts in your will, which may give beneficiaries income tax benefits or which may protect the entitlements of a beneficiary who is considered incapable of prudently managing his or her entitlements.
  • In conjunction with your accountant we, at Leaker Partners, can assist and advise you in these matters.
  • When someone dies leaving a valid will, a person is generally nominated to oversee the affairs of the deceased’s estate – called an executor.
  • Where someone dies without leaving a valid will, (or where the named executor is unwilling or unable to act), the Court will appoint an administrator.
  • The executor will need to apply to the Supreme Court of WA for a grant of probate of the will depending on the extent of the estate.
  • The administrator’s role is similar to that of the executor.
  • An executor or administrator is also known as the ‘legal personal representative’ of the estate.
  • The legal personal representative will generally have to:
    • locate the will (if there is one);
    • look to whether the deceased expressed a wish in relation to disposal of his or her remains;
    • organise the funeral;
    • apply for a grant of probate or letters of administration;
    • ascertain and protect the assets;
    • identify and contact the beneficiaries;
    • determine the assets and liabilities;
    • finalise any tax returns;
    • pay off any debts;
    • deal with any claims against the estate; and
    • sell or transfer the assets
  • Understandably, the role of legal personal representative can be challenging and complex, and legal advice may be of assistance.
  • We at Leaker Partners assist executors and administrators in the obtaining of a grant of representation from the Court and in the realisation and disposal of assets in accordance with the will (if there is one) and otherwise according to the inheritance laws.
  • Depending upon the size, extent, location or nature of the assets of the deceased it is necessary to seek a grant of probate (if there is a will) or a grant of Letters of Administration (if there is no will).
  • Papers that must be filed in the Supreme Court generally include:
    • An affidavit including a statement of assets and liabilities;
    • Death certificate;
    • The will (if there is one);
    • Motion paper;
    • A fee.
  • A grant can take several weeks to issue
  • The Family Provision Act 1972 (WA) governs who may challenge a will:
    • Your spouse (including de facto);
    • A former spouse or de facto still receiving maintenance benefits;
    • A stepchild maintained by deceased;
    • A child;
    • A grandchild maintained by or living with deceased;
    • A parent.
  • If you want someone to manage your property and financial affairs, you may appoint that person by making an Enduring Power of Attorney.
  • The Enduring Power of Attorney can continue despite your subsequent legal incapacity.
  • You may appoint one person or 2 persons jointly or separately, and appoint a substitute attorney or attorneys (eg. in the case of death or incapacity of the primary appointment).
  • We at Leaker Partners can give you legal advice and assistance regarding the making and registering of an Enduring Power of Attorney.
  • An Enduring Power of Guardianship is complementary to an Enduring Power of Attorney.
  • An Enduring Power of Guardianship enables you to appoint an enduring guardian to make personal, lifestyle and treatment decisions on your behalf in the event that you lose the capacity to make such decisions.
  • These include decisions regarding consenting, or refusing to consent to the commencement or continuation of any medical, surgical or other treatment of yourself.
  • We at Leaker Partners can give you legal advice and assistance regarding the making of an Enduring Power of Guardianship.
  • An Advance Health Directive sets out your decisions about the specific medical, surgical and other treatment and health care that you would want to be carried out in certain medical circumstances.
  • An Advance Health Directive comes into effect only if you are unable to make reasonable judgments about a treatment decision at the time that the treatment is required.
  • You can make an Advance Health Directive that you either provide consent, or refuse consent, to future or selected treatment.
  • You should get professional legal advice regarding making Advance Health Directives.
  • We at Leaker Partners can provide you with appropriate advice and the form of the directives which would be signed by you.