Deciding which estate lawyer is right for you

Believe it or not, finding a lawyer who is right for you is not an easy task, especially when it comes to wills and estates. However, it is one of the most important steps to take when beginning your legal journey as the right lawyer is critical in the outcome and resolution of your matter.

As an initial starting point, you need to determine what you are seeking a lawyer for. Wills and estates law covers a variety of niche areas and not every lawyer will specialise in them all.

What sort of matter do I require assistance for?

Wills and Estates Planning

Often people believe that estate planning means simply drawing up a will. Whilst this is important, it is only one piece of the puzzle. It also involves formalising arrangements such as how you would like to be looked after medically and financially should anything happen to you or should you be unable to make your own decisions later in life.

An estate plan will also specify the management and protection of your assets during your lifetime and after your death.

The benefits of an estate plan are that it allows you to formalise your wishes in writing, minimise disagreements, and improve the tax consequences of your heirs. Therefore, legal advice is recommended when seeking to undergo estate planning.

Probate and Administration

A grant of Probate is an instrumental legal step that is required before an executor or administrator can administer a deceased person’s estate and distribute it to beneficiaries. A grant of representation confirms that the deceased’s will has been proven as valid and registered, and confirms the appointment of an executor and gives them the authority to deal with the estate’s assets, such as bank accounts, shares, and property.

Where there is no will, grant of Letters of Administration may be granted by the court to confer on an administrator the powers and duties necessary to administer the deceased’s estate in accordance with intestacy legislation.

Probate and Letters of Administration are obtained through an application to the Supreme Court which includes the following documents:

1. A summary of the estate including its assets and liabilities.
2. Your affidavit as an executor or administrator.
3. A copy of the advertisement advising of your intention to apply for probate/letters of administration.
4. The original will (if available).
5. A certified copy of the deceased’s full death certificate.

Seeking advice from a legal practitioner can assist increase the chances that your application is successful, and decease the stress associated with the process.

Contesting and challenging the estate

Contesting a will and challenging a will are two very different things.

Contesting a will is when you have been left out of will or feel you have been treated unfairly by the Testator within their Will. In such circumstances, you launch a family provision claim to seek adequate provision from the deceased’s estate.

To challenge a will is to dispute a will, or to say that the will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease, or they were put under pressure to change their Will.

Challenging a will

The most comment reasons that a will may be challenged are:

• The will-maker did not have the testamentary capacity to make the will at the time it was signed.
  • Only adults 18 years or older have the capacity to create a will (however in some jurisdictions minors in the military or are married have the right to make a will)
  • Adults are presumed to have testamentary capacity. It is only challenged in cases of dementia, insanity, under the influence of a substance, or if they in some other way lacked the mental capacity to form a will.
  • To challenge a will based on mental capacity, you must be able to show that the will-maker did not understand the consequences of making the Will at the time of its creation.
• The will was the subject of fraud, forgery or made under the influence of others.
  • This usually involves someone manipulating the vulnerable person into leaving all or much of the property to the manipulator.
  • ‘Undue influence’ merely means that the person lacked the free Will to make their own decisions or to bargain because of the manipulator
  • As a result, the ‘will’ becomes a document which does not record the true testamentary wishes of the will-maker and thus will be found to be invalid.
• There was an insufficiency and inappropriateness of witnesses to the signing of the will.
  • The Will must be dated and signed by the will-maker in the presence of at least two adult witnesses. If this does not occur the will could be void for incompleteness
• The will was left unsigned.
  • An unsigned Will, in most cases is found to be invalid as it does not adhere to the requirements for execution of wills as outlined in the Wills Act 1997.

Contesting a will

Contesting a will is the action taken when you have been left out of will, or feel you have been treated unfairly by the Testator within their will. In these circumstances, you launch a family provision claim. In Victoria, these claims are also commonly referred to as Part IV claims or Testator Family Maintenance (TFM) claims.

The aim of contesting a will is to be awarded adequate compensation from the deceased’s estate. Unlike challenging a will, you are not seeking to strike out the will. Instead, you are seeking to be given a greater entitlement under the terms of the will than you have previously been bequeathed.

Seeking advice from an estate lawyer is instrumental if you would like to challenge or contest a will as they are able to advise you whether the circumstances of your matter lead to a reasonable prospect of success.

Power of Attorney

A power of attorney is a legal document where a person nominates and gives legal authority to another to act on affairs on their behalf. Essentially, nominating a power of attorney allows you to delegate the management of your affairs to someone you trust.

General power of attorney

A general power of attorney is where you appoint someone to make financial and legal decisions for you, usually for a specified period of time. They are not able to make personal, medical, or lifestyle decisions on your behalf, and will lose their appointment should the person who nominated them, lose the capacity to make their own decisions.

Enduring power of attorney

An enduring power of attorney is where an agent can be called upon to make decisions for the nominating person in a situation where the nominating person does not have the mental capacity to attend to their own affairs, including personal, medical, and lifestyle affairs.

Given the significance of such an appointment, it is important to seek legal advice should you wish to appoint a power of attorney.

Sorts of questions to ask when speaking to a potential estate lawyer

Once you have determined the sort of legal issue you are seeking advice on, it is always a good idea to ask a potential lawyer the following questions.

1. Do you specialise in, or have experience in, this sort of legal matter? Expertise in the relevant area of law is important to get the best results.
2. How many years of experience do you have acting for clients in this sort of matter? This allows you to gauge the competency of your prospective lawyer. If they have a great number of years acting for similar matters, they will generally have more knowledge about how to best deal with your needs
3. How are these sorts of matters generally handled? This question allows you to understand the process involved in the management of your sort of matter.
4. What is the timeline you try to operate to? It is always a good idea to seek advice as to how long your matter may take, as if it is litigious (as it is in contesting/challenging a will) it may take longer than you anticipate.
5. How will I be billed for work on this matter? What would you estimate the cost be? This sort of question is especially important when deciding what type of lawyer is right for you. Often law firms will offer ‘No-Win, No-Fee’ arrangements if your matter is litigious, otherwise, a firm may charge you on an hourly basis and bill you on either a monthly or quarterly basis.

Get in touch with our estate lawyers

Ultimately, finding the best estate lawyer for you is based upon the matter you are seeking advice for, and your individual needs. At Hentys Lawyers, we have over 25 years of handling will disputes and assisting with grants of representation. Enquire with us today to see how we can assist you with your matter, and see whether we are the right lawyers for you.