Choosing the right estate lawyer: which questions to ask
Estate planning can be confronting and challenging to think about and start to organise. It requires consideration of situations that may arise whilst you are living and after you are gone. It is critical that you make arrangements if a situation occurs while you are still living but cannot care for yourself due to illness or disease and arrangements for who will inherit your assets and your wishes in relation to those assets.
Questions to ask when choosing an estate lawyer
Choosing the right estate lawyer is important as not all estate plans are the same because not everyone’s circumstances are the same. When it comes to choosing the right estate lawyer, it is important to be selective and ask the right questions. It does not have to be a long or difficult process but it is important to seek recommendations from an accountant or other professional. Some important questions to ask an estate lawyer are:
1. Do you handle estate litigation?
No matter how well you plan your estate unfortunately, a dispute may arise after you die. Some common disputes are as follows:
- a beneficiary or family member may try to challenge the validity of your will;
- the beneficiaries might disagree on how best to dispose of estate property;
- a beneficiary or family member might issue a claim for further provision; or
- the executor may cause delay in relation to obtaining a grant of probate.
2. Do I have any relatives who could contest my Will for further provision?
Under s 90A of the Administration and Probate Act 1958 (Vic) an application can be made to the court for an order awarding an eligible person further provision from the estate. This claim is often referred to as a Part IV claim.
Section 90 of the Administration and Probate Act 1958 (Vic) defines who are eligible persons. Some examples of eligible persons include:
- A spouse or domestic partner of the deceased.
- A child of the deceased (including adoption or step-children).
- A former spouse or domestic partner of the deceased (who has not finalised Family Law proceeding).
- A registered carer of the deceased.
- A grandchild of the deceased.
- A person who was a member of the deceased’s household.
- A person who for a substantial period of time believed the deceased to be their parent and was treated as a natural child.
To establish a claim for further provision the deceased must have had a moral duty to provide for the eligible person and that the Will fails to make adequate provision for their proper maintenance and support.
In this regard, it is important to discuss with your estate lawyer the possibility of any eligible persons contesting your estate after you die. For instance, perhaps a child or domestic partner who has not been left any inheritance and therefore, might decide to issue a Part IV claim against your estate. The right estate lawyer should identify any eligible persons and the impact it would have on other beneficiaries if your estate was contested.
3. What is the purpose of an Enduring Power of Attorney and should I appoint one?
It can be unpleasant to talk about or ponder the idea that someday many of us will no longer be able to control our personal and financial affairs due to a disease or illness. However when selecting an estate lawyer it is important to ask unpleasant questions. If you are of a certain age, the right estate lawyer should advise you to appoint an Enduring Power of Attorney. An Enduring Power of Attorney can be appointed when you create a Will, it is a form used to give an agent the power to make financial and legal decisions on your behalf if it comes a day where you cannot make those decisions yourself. Unlike a general Power of Attorney, an Enduring Power of Attorney comes into effect when the principal lacks mental capacity. The agent should be a family member or friend, but most importantly, it should be someone you trust completely. The right estate lawyer for you should explain to you the purpose and benefit of an Enduring Power of Attorney.
4. How will you communicate with my executor after I am gone?
A less significant but possibly determining factor for someone, when it comes to selecting an estate lawyer, might be how he or she typically communicates with a client. If your executor is someone who is not particularly tech savvy, it might not be a right choice to select a lawyer who communicates entirely via email.
5. Will you store my Will?
Preparing for when you pass away also includes considering whether you will keep your Will. Some choose to give the executor of your Will your original Will for safekeeping. Too often when a person dies, family members have to search the deceased’s home for a Will. Most lawyers will offer to store your Will free of charge. In choosing the right lawyer it is appropriate to ask if he or she will store your Will, particularly if you are concerned that your executor will not be able to locate it.
6. What will happen if I do not make a Will?
For some people making a Will is daunting or emotional and perhaps they will put it off for some time, but it is important to understand what happens if you do not have a Will. If you are doing a call around to various estate lawyers in order to pick the right one to create your Will, you should ask what will happen if you do not have a current Will when you die. The right lawyer should be able to explain that if you die without a current Will the law prevails and will decide what happens to your estate. Unfortunately, this could mean that your estate is not distributed in the manner you may wish. It is possible that your estate will be distributed in accordance with an old Will. If you have no Will at all, at the time of your death, then an administrator is appointed to your estate and the legal rule known as the rules of intestacy will prevail. The rules of intestacy provide a hierarchy as to where your assets are distributed according to who your closest relatives are. The rules of intestacy prevail even in the most unfortunate circumstances. As a worst-case scenario, if someone dies leaving no partner and no children, but leaves a parent or parents who the deceased is estranged from, the entire estate would go to the estranged parent(s).
7. Do you have any clients with a situation similar to mine?
Just like no two people are the same neither are two estate plans, however it is a good idea to ask an estate lawyer whether he or she has a client with similar circumstances. For example, perhaps you have a domestic partner, children from a first marriage or a disabled child, which are aspects that could complicate an estate plan. It is important that your selected estate lawyer caters to your unique needs.
8. Do you conduct periodic reviews?
For an extra fee, some estate lawyers will conduct an annual review of your assets and assess whether your Will needs to be changed. If you are someone who continually requires large assets, this might be an important question to ask an estate lawyer.
Question to ask yourself before choosing an estate lawyer
9. Do you feel comfortable with this estate lawyer preparing your Will and handling the distribution of your deceased estate?
Possibly the most important question of all. It is extremely important that you feel comfortable with the estate lawyer you select. Even if the lawyer answers all the questions to your satisfaction, you need to trust him or her and feel confident that their work will meet your needs and wishes. In terms of estate litigation, it is important that the lawyer is candid about the success of your claim and points out the strengths and weaknesses. They must also have a thorough understanding of what arguments the defendant is likely to present.
Speak with an estate lawyer
If you believe you may have grounds to challenge a Will or if you think that you may find yourself in a Will Dispute, or needing to Defend a Will please do not hesitate to contact the team at Hentys Lawyers today.
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