Comprehensive Guide to Wills, Probate, and Future Planning in New South Wales

Planning for the future is crucial for ensuring your wishes are respected and your loved ones are cared for after your passing or in the event of incapacity. In New South Wales, wills, probate, enduring powers of attorney, and guardianship are vital tools for managing your estate and personal affairs. This guide explains these essential aspects and highlights the role of the NSW Trustee and Guardian in safeguarding your interests.

Key Aspects of Wills and Probate

1. Creating a Valid Will
   A will is a legal document outlining how your assets will be distributed after your death. To be valid under the Succession Act 2006 (NSW), a will must be in writing, signed by the testator, and witnessed by at least two people. A properly drafted will ensures your estate is distributed according to your wishes, minimising the risk of disputes.

2. The Probate Process
   Probate is the legal process of proving a will’s validity and authorising the executor to administer the deceased’s estate. The Supreme Court of NSW oversees this process. If there is no valid will, the court may issue letters of administration to appoint an administrator.

3. Contesting a Will
   Under the Family Provision Act 1982 (NSW), eligible individuals such as family members or dependents can contest a will if they believe they have been inadequately provided for. Courts consider factors like the applicant’s financial needs and relationship to the deceased.

4. Intestacy Laws
   When someone dies without a valid will, intestacy laws apply. The Succession Act 2006 (NSW) outlines a hierarchy for distributing assets, prioritising spouses, children, and other relatives.

Planning for Incapacity: Power of Attorney and Guardianship

1. Enduring Power of Attorney
   An Enduring Power of Attorney (EPA) allows you to appoint someone to manage your financial and legal affairs if you lose capacity. Regulated by the Powers of Attorney Act 2003 (NSW), this document remains effective even after incapacity and covers tasks like managing property, paying bills, and handling investments.

2. Guardianship and Enduring Guardianship
   Guardianship enables you to appoint a trusted individual to make decisions about your personal and health care if you become unable to do so. The Guardianship Act 1987 (NSW) governs these arrangements, ensuring your guardian acts in your best interests regarding medical treatment, accommodation, and services.

The Role of the NSW Trustee and Guardian

The NSW Trustee and Guardian provides vital services for estate planning and management, particularly for those without trusted friends or family to appoint.

• Estate Management: They can draft wills, administer estates, and act as executors.
• Financial and Personal Management: They may serve as attorneys under a Power of Attorney or as court-appointed financial managers and guardians.

Why Legal Assistance is Essential

Navigating the complexities of wills, probate, and future planning requires professional guidance. Legal experts ensure your documents comply with legal requirements, reflect your wishes, and protect your loved ones from unnecessary stress or disputes.

At Montgomery Legal Practice, we offer comprehensive services, including drafting wills, applying for probate, and assisting with enduring powers of attorney and guardianship. Let us help you secure your legacy and safeguard your future.