Bequest to Independence Australia

When there is no Will or no valid Will, you are said to die “intestate”. Your estate is then distributed according to State laws which are often not in line with your wishes and can tie up the estate for years and incur expensive legal costs.

If you die without leaving a Will, your spouse will receive the first $100,000, the personal chattels and one-third of the balance of your estate. Your children will receive the remaining two-thirds shared equally between them. Your spouse will also have the option of buying your interest in the matrimonial home at its value at the date of your death.

If you are not married and have no children, your estate will pass to your parents if alive and, if not then to your brothers and sisters, nieces and nephews, grandparents and, in some cases, cousins. If no relatives can be found after extensive searching the Government will inherit your estate.

There are several ways you can make a bequest. If you’re naming more than one not-for-profit organisation, it’s a good idea to specify proportions of the estate rather than specific amounts. The following may help you decide which way best suits your needs.

A Percentage Bequest

You may wish to share your estate among a number of people without identifying specific items of property or amounts of money. This type of bequest avoids problems caused by inflation, sale of, or changes to assets. It also ensures that should the value of your estate change, no beneficiary will be unfairly disadvantaged.

A Residual Bequest

After leaving specific assets or amounts to family and close friends, you may choose to bequeath the residue (balance) of your estate to others, such as ParaQuad Victoria. It is possible to leave a percentage of the residue to more than one organisation.

A Specific Bequest

You can specify property, works of art, insurance policies, stocks and shares, jewellery, money, in fact anything of value as your bequest. Property must be fully described so that it’s easily recognised. If money is specified it’s important to take inflation into account as its value will diminish over the years. This can adversely effect people and organisations named in your Will.

A Life Interest

You can leave a property or perhaps the interest on a capital sum invested for the use of a loved one during their lifetime. Afterwards, the property or capital can pass to another beneficiary you nominate in your Will.

The following wording for your Will is provided as a guide for leaving a Bequest to an organisation.

” I ___(name) ___ devise and bequeath to ___(eg. Independence Australia)___ free of all duties, the following: (Insert details of your bequest)

$ ______ or ___% of my estate or
Property, real estate, shares etc ______ or
Other _____________________________

For which a receipt from an authorised officer of ___(eg. Independence Australia_ ___will be a sufficient discharge for the Executor.”

Although you may write your own Will we strongly recommend that you consult a solicitor who will ensure your wishes are properly expressed using the correct legal phrases. It need not be expensive and it may be helpful to take some simple steps before you see your solicitor.

Step 1

Think of your family, friends and the organisations you wish to provide for.

Step 2

List all your assets and current liabilities.

Step 3

Decide how to share your property amongst those you wish to benefit.

Step 4

Choose who you would like to act as your Executor to carry out your wishes.

When you’ve done this, you’re ready to see your solicitor and make or revise your Will.

For a Will to be valid it must be signed by the Testator and two independent witnesses over 18 years of age. The witnesses should not be beneficiaries of the Will. Their signatures, occupation, addresses and the date should be at the end of the Will under the Testators signature.

What claims can be made against the estate?

Anyone who was owed money by the deceased may pursue the claim against the estate.

In addition, the law gives certain people who have a close relationship to the deceased the right to claim a share or greater share in the estate. These are the deceased’s widow, widower or children. Widow includes any former wife of the deceased who was at the time of death legally entitled to receive maintenance (but not de facto spouses), and children includes illegitimate children.

To succeed in such a claim the applicant must convince the court that the estate has not made adequate provisions for that person. All such applications must be started within six months after the date of the grant of probate or of the letters of administration.

Consider naming a Power of Attorney

A Power of Attorney is an important legal document, to safeguard yourself and your estate, if you become unable to handle your own affairs due to accident or illness. It is not part of a Will but it is wise to allow for unforeseen eventualities when planning your estate.

What is a Power of Attorney?

A Power of Attorney is a document authorising a person to act on behalf of another person.
If, for example, you were going overseas or required hospitalisation, signing a Power of Attorney would allow someone you trust to act on your behalf in your absence.
There are several types of Powers of Attorney including:

1. General Power of Attorney
2. Enduring Power of Attorney (Medical Treatment)
3. Enduring Power of Attorney

You can give a person power to act on your behalf in limited circumstances; eg. to sell your house for a specific figure, to operate your bank account or to act on your behalf for a limited time.

Alternatively, you can give a person control of all your business affairs by giving him/her the authority to do anything on your behalf.

How can a Power of Attorney be withdrawn?

If you wish to revoke a Power of Attorney, you should sign a document called a “Revocation of Power of Attorney”. If possible, when you revoke it you should ask the person to whom you gave the power to give you back the original and certified copies of the document creating the power and provide that person with a copy of the revocation.

In certain circumstances if anyone with a special interest in your affairs believes that your agent is not acting in your best interests, an application can be made to the Guardianship and Administration Board for a review of the situation. (Please note only relates to a certain class of persons).

All Power of Attorney documents should include the specimen signature of the Attorney.

Authority under a Power of Attorney

The authority under a General Power of Attorney ceases immediately when you become mentally or physically incapable of managing your own affairs (for example, if you become bankrupt or very ill).

However, under an Enduring Power of Attorney, the authority to act on your behalf will not end if you become mentally or physically incapable of managing your own affairs. An enduring Power of Attorney must be witnessed by two adults.

An Enduring Power of Attorney (Medical Treatment) gives the person you appoint the authority to make decisions about medical treatment on your behalf if you become incompetent through ageing, physical or mental illness or injury. An Enduring Power of Attorney (Medical Treatment) must be made on a form prescribed by legislation and witnessed by two adult witnesses, one of whom must be a person authorised to take statutory declarations (such as a solicitor). The authority only becomes effective if you become legally incompetent ie. unable to make decisions on your own behalf. This document only gives the person to whom you have given the authority power to refuse medical treatment generally or specific medical treatment if he/she believes it would cause you undue distress, or if he/she believes you would have thought the treatment was unwarranted. Such persons cannot authorise administration of particular medical treatment.

In these days of change, you should review your Will at least every five years. A Will should reflect your current domestic and financial situations. If these change, you should revise your Will.

If you marry, a Will made prior to the marriage is no longer effective. If you separate, a Will made prior to the separation will not be affected. If you divorce, any gifts to your divorced spouse or their appointment as Executor will automatically be revoked. If these consequences are not in accordance with your wishes, you must make a new Will. Your choice of an Executor and a guardian should also be reviewed from time to time as circumstances change.

Seemingly obvious advice, but many people neglect to follow it, or if they do, no one else knows the whereabouts of the Will. You may choose to leave it with your solicitor, trustee company, bank or Executor. If you want to keep a copy at home, leave the original with one of the above.

When you consult a solicitor about making a Will, the solicitor will not only ensure that the Will is properly drawn up and correctly signed and witnessed, but will also discuss such matters as:

• the selection of an Executor and the appropriate powers to be given to him or her
• the selection of a guardian for your infant children and how funds available for the children’s maintenance, education or benefit should be applied
• what assets you can dispose of by your Will and what assets you cannot, such as those owned by a family discretionary trust
• minimising capital gains tax liability
• what liabilities you need to provide for in your Will and whether your life insurance is adequate in the circumstances
• your obligation to provide for family members and how best to avoid a testator’s family maintenance claim
• the options for providing for a de facto spouse, for second marriages and blended families
• the appropriate age for beneficiaries who are minors to take their share of the estate
• funeral arrangements
• where to keep your Will, who should know where it is kept, and in what circumstances it should be viewed
• the benefits of having a Power of Attorney

The legal profession has been known to confuse many people with the jargon that they use when discussing such matters as Wills and bequests. To assist with your understanding we provide the following brief explanation of some of the more commonly used terms:

Administrator

A person appointed by law to settle the affairs of someone who dies without a Will

Beneficiary

A person or organisation receiving a gift from a Will

Bequest

A gift left in a Will to a specific person or organisation

Bequeath

To leave a Bequest in a Will

Codicil

A supplement to a Will containing an addition or change to the Will

Divorce

Dissolution of marriage. May result in a need to change a Will

Estate

The property and possessions of a deceased person

Executor

A person named in a Will to carry out the provisions of the Will

Inheritance

Property passed on by a deceased person

Intestate

Dying without leaving a Will. ‘Partial Intestate’ – to die with only part of an estate covered by a Will

Legacy

A Gift of property left in a Will

Pledge

A promised gift

Probate

The official proving of a Will as authentic or valid

Residue (or Residual)

The portion of the estate left over after all expenses and Bequests have been settled. Often this is left to a charity

Testator

A person who has made and left a valid Will

Trust

Assets held and controlled for the benefit of another (the beneficiary)

Trustee

A person who holds and controls property for the benefit of another

Acknowledgment:  Law Institute of Victoria