Lawyers undergo a lengthy period of training to understand and interpret the law. Due to their training in many fields of the law, lawyers are able to advise on all aspects of a matter. Once admitted to practice, all lawyers must hold a current annual practicing certificate and are subject to regulation by the NSW Law Society.
All lawyers are bound by Rules of Professional Conduct as well as Rules and Regulation concerning the management of legal practices. These Rules have been developed over many years for the protection of the public. It is better to have expert advice and assistance to avoid further difficulties or to deal properly with difficulties that arise.
It is therefore beneficial to use a lawyer, particularly in regards to procuring advice with respect to Will and Estates. Only a legal adviser with a detailed knowledge of his or her client’s affairs can draw a proper will. A will is a legal document, allowing belongings and assets to be allocated after you die. In addition, a will may also be used to appoint a guardian to take care of children until they are “of age”.
Everyone should have a will so that personal possessions are distributed in accordance with one’s wishes after their death. If a will is not made, one’s assets will be distributed according to “intestacy rules” that do not take into account individual circumstances or personal wishes. A will also allows you to appoint an executor who will manage the distribution of assets. In the alternative a court-appointed person (an administrator) distributes the assets in question.
There are some statutory rules and “rules of construction” relating to wills. Lawyers are familiar with these rules and are aware of any “legal traps” or drafting techniques. Having obtained careful and detailed instructions from their client, a lawyer will ensure the will complies with these instructions, by reading over and explaining its implications and legal effect before its execution. This shall be carried out on the basis that the lawyer is satisfied that the person making the will (the testator) is of sound mind, memory and understanding. Upon obtaining instructions, it will be determined the testator has an existing will, a list of their assets will be made, details of superannuation will be made, it will be asked who the intended beneficiaries are and it will be established whether the testator will marry.
Once the testator has signed the will, the lawyer has the capacity to keep with them a copy in a fireproof filing cabinet.
Whilst drafting a will, a lawyer can take into consideration whether the testator’s circumstances relating to property for example, will change. In addition, it will be ensured that the administrator of the will has sufficient powers to sufficiently administer the estate (in the alternative he or she may have to seek extra powers from the Supreme Court).
Advice will also be provided at appropriate times. For example, the effect of marriage on a will, international legal aspects and advising upon the major problem with leaving cash gifts with respect to the impact of inflation. It is necessary to obtain the testator’s instruction in regards to each gift of money and whether they should be escalated to reflect the rate of inflation. A lawyer will also most importantly ensure that the will is correctly witnessed and executed.
Lawyers may also assist in estate planning as estate planning and will drafting is closely linked. Any arrangement or rearrangement of a client’s business and investments, in the form of business and wealth planning, should also extend to the intended position on and after the client’s death. This would involve finding out from the client whom and to what extent the client desires to benefit during the client’s lifetime and on death, to plan the client’s affairs to achieve that aim. In estate planning, it should be ensured that the client retains control over his or her affairs during his lifetime.
Additionally, it should be guaranteed that a distribution of income and capital meet specific requirements, ensuring that upon death the estate is distributed in the most advantageous way amongst those whom the client wishes to benefit. An estate plan should therefore create an ordered, secure yet simple and flexible overall regime for the client’s affairs. It should provide scope for building up assets during life, and should secure a comfortable retirement.
In light of the fact that a will should not only be drafted in accordance statutory rules and rules of construction but as part of estate planning, it is suggested that it should be made in accordance with legal advice. Tranter lawyers are able to advise on all aspects of a matter. Furthermore, because of changing family and economic conditions and variations in taxation, every testator should revise their will regularly. Tranter Lawyers remain up to date with these changes not only in the law but also in the current economic environment. This is in addition to assisting in estate planning and providing advice aimed at preserving the family fortune in the context of changing taxation rules, interest rates and inflation.
For specific advice on Wills & Estates contact Tranter Lawyers.