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Who’s going to inherit your estate after you die?

Let’s be honest, dying isn’t something you’re especially keen to think about.

But whether you like it or not, eventually someone else will receive the assets you leave behind.

It’s a fact!

This is a decision for you to make — and it’s important to get it right.

Creating a will that clearly states who you’d like to benefit from your estate not only makes sure you don’t leave things to chance, it minimises the potential for family conflict.

How to avoid family members fighting over your will and estate

The tension and tug-of-war surrounding wills and estates often causes family relationships to break down.

Especially when there are multiple siblings, stepchildren or blended families.

Former partners (marriage and de facto) need to be considered too.

It can be a recipe for trouble when family members are trying to work through the will and estate at the same time they’re grieving.

There’s no doubt it’s a stressful time.

“Wills and estates can bring out the ugly side,” says Estate Planning Attorney Monique Smiles.

“The amount of times I’ve been to mediation where people don’t talk to each other…and someone just died” — Estate planning lawyer Monique Smiles

The best way to prevent that happening in your family is to set up your will with a lawyer who specialises in estate planning.

They’ll make sure your will is legally sound and clearly communicates your wishes.

This might include an explanation of why you made a certain decision.

No-one wants their will to be contested but if it’s not set up by an expert estate planning lawyer there’s a greater chance that may happen.

“A lot of people mistakenly believe that someone’s will is final. That’s not always the case,” says Monique.

“Generally speaking, you have the right to choose where your estate goes when you die.

“But it’s important to understand there’s legislation that comes into play if someone believes they’ve been unfairly left out.”

An expert estate planning attorney will make sure you understand how the law applies in your particular situation.

That way, there’s the best likelihood your estate will go exactly where you want it to.

What to do if you’ve been left out of a will

Being left out of will can be extremely hurtful.

There’s a lot at stake, including your relationships with other family members who may have benefited, while you were overlooked or treated unfairly.

You’re probably dealing with a lot of emotion.

However, you may have a legitimate moral claim under family provision legislation.

This can apply whether you’ve been left out of a will completely or you haven’t been provided for adequately.

“Remember that someone’s will is not necessarily final” — Estate planning lawyer Monique Smiles

“Because we specialise in estate planning and will disputes, we can pinpoint the legislation and case law that applies to your situation.

“And if you’ve been treated unfairly, we can help you make a claim against the estate.”

Just make sure you don’t leave things too long.

The law only gives you a limited time to challenge a will before the assets are distributed.

We recommend you get in touch with our Wills and Estates team as soon as possible.

You’ll find more information about how to contest an estate here on our website.

What if someone made or changed their will when they were lacking mental capacity?

In order for a will to be valid, the person making it must have demonstrated mental capacity at that time.

Having capacity means you are capable of weighing up and articulating important decisions.

This is a critical part of making a will that’s legal and can hold up in court if it’s challenged.

Claiming that someone lacked capacity when they made or changed their will is a common reason for will disputes.

For example, an older person with dementia may have lacked capacity and been improperly influenced by someone else to change their will.

As a result, the new will may not be legal.

Contested wills and probate lawyers, including our Senior Wills and Estates Solicitor Monique Smiles, can advise you what to do if you’re worried that someone lacked capacity when they made or changed their will.

We recommend you get in touch so we can explain your options.

Worst case scenario

What happens if you don’t get around to your estate planning, despite those good intentions?

Who’s entitled to what?

In fact, this is dictated by legislation that covers all sorts of scenarios.

For example, it spells out what happens if there is:

  • a spouse and children, where one or more children of the deceased are from another relationship
  • no spouse but multiple surviving children and grandchildren.

These and many more inheritance scenarios are covered in the Succession Act 2006.

And what if you don’t have a family?

“If you have no family and no will, everything you own will go to the government” — Estate planning lawyer Monique Smiles

We know that plenty of people think about making a will.

Often, they type phrases into Google like ‘solicitors for wills near me’ or ‘estate planners near me’ but they never follow through.

Our Wills and Estates team are not just everyday solicitors who practice in all aspects of the law.

We are Newcastle lawyers who specialise in estate planning, will disputes (contested wills and probate), enduring guardianship, power of attorney and elder law.

Make sure you have an enduring guardian (it’s really very important)

Are you familiar with the term enduring guardian?

Do you understand why you need one?

Enduring guardian is a role far too many Australians don’t know about.

We take every opportunity we can to spread the word: you need an enduring power of attorney AND an enduring guardian.

These are separate roles — and they’re just as important as setting up your will.

“Whoever you appoint as your enduring guardian has legal authority to make decisions about your care and medical treatment if you lose mental capacity, ” says Estate Planning Lawyer Monique Smiles.

Capacity is a legal term.

It describes your mental ability to weigh up and articulate important decisions affecting your life, including medical treatment and even where you live.

You might lose capacity if you’re affected by dementia as you grow older.

Or you might suffer a catastrophic accident or illness, even as a younger adult.

“Thinking ‘that won’t happen to me’ is the worst possible excuse” — Estate planning lawyer Monique Smiles

“Sadly, it does happen.

“As elder law and estate planning lawyers, we hear it all the time,” says Monique.

“Often people think it’s the next of kin who makes those important decisions for you, without being formally appointed.

“But that’s not always the case.”

If you don’t have an enduring guardian, your family may have to make a Guardianship application to the New South Wales Civil and Administrative Tribunal (NCAT).

This can take time, often at the worst possible time.

Choosing your own enduring guardian is by far the best option.

It means that someone you trust can legally make decisions in your best interests, should the unexpected happen.

Here on our website you’ll find a whole host of information and articles about enduring guardianship.

We really encourage you to think it through and get in touch so we can help you get it sorted.

Appointing your enduring guardian is a critical part of your estate planning.

Do you need an enduring power of attorney…and who to choose?

Yes, it’s extremely sensible to appoint an enduring power of attorney.

The person you choose can make financial decisions on your behalf, if you’re unable to make them yourself because an accident or illness such as dementia has affected your mental capacity.

Especially if you’re heading into retirement age, we recommend setting up your enduring power of attorney ASAP.

“Lots of people worry about who to appoint as their enduring power of attorney” — Estate planning lawyer Monique Smiles

Whoever it is has to do things in your best interests or they can be held in breach under the legislation,” says Monique.

“Clients sometimes tell us this knowledge made them feel more comfortable about getting on with their estate planning.

“It’s amazing how often we tend to put these things in the too-hard basket…and then it’s too late.”

Is it a good idea to share the role of enduring power of attorney, for example between children?

“That depends on the people,” says Monique Smiles.

“Sometimes appointing the one person is an easy decision to make, if that person is more financially minded and better equipped to make those decisions.”

Then again, appointing two people can have benefits.

If something happens to one person, you’ll have a back-up.

It is possible to appoint enduring power of attorney jointly — and add restrictions.

For example, you might specify that both people have to sign off on any transaction above $5,000 otherwise that decision will be referred to the Guardianship Division.

“If your attorneys won’t agree, that is a risk,” says Monique.

“If you’re going to appoint people together you need to be sure they have a good relationship.”

If you’re confused about choosing your enduring power of attorney or you have further questions, our Wills and Estates team is more than happy to help so please get in touch.

What are your responsibilities as an executor or administrator?

  • Your role as an executor is to administer the estate in accordance with the provisions of a will.
  • An administrator is appointed if someone doesn’t have a will. As an administrator, you must distribute the assets in line with legislation known as intestacy laws (part of the Successions Act 2006).

Whether you’re an executor or administrator, it’s important to understand the decisions you make can’t benefit you personally.

Otherwise, you may be held in breach of the law.

You can read more about the roles of administrator and executor here on our website, including an explanation of probate.

Would you like more information?

Do you have a question or concern about your own estate planning?

Or perhaps it’s to do with someone else’s will or estate, including an elderly parent or relative.

Please feel free to call us on 1800 874 949 and we’ll point you in the right direction.

We also have plenty of free resources, including blogs and case studies that are updated regularly by our specialist estate lawyers.

Our Wills and Estates Law Team


Monique Smiles

Monique Smiles

Senior Associate | LLB Grad Dip Leg Prac
Liza Stewart

Liza Stewart

Solicitor I BA LLB Grad Dip Leg Prac
Marlene Fleming

Marlene Fleming

Probate and Conveyancing Clerk
Angela Kerr
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