Estate planning is important to ensure your family’s long-term financial security and to be confident that your assets will be distributed as you would like in the event of your death. Johnston Withers are leading Wills and Estates lawyers in Adelaide and Regional South Australia and can assist you with a range of related service areas.
We can help in the following areas for Wills & Estates:
Wills for South Australian families
A will is the best way for you to ensure your loved ones are provided for after your death. Without a will the wishes of a deceased person have no way of being known, and the administration of an estate without a will can be complicated and expensive.
Our Wills and Estates lawyers will help you to prepare a will that meets all the formal requirements of the Wills Act. We will also work with you to choose Executors – the person(s) who will finalise your legal and financial affairs and have the responsibility of ensuring your wishes are carried out.
Our Wills lawyers in Adelaide and Regional South Australia can also advise on how to reduce the risk of someone challenging your will after your death, so you can be confident your assets will be transferred as you wish.
Our Wills and Estates lawyers can also advise on more complex wills incorporating testamentary trusts, and advise on issues such as protective trusts for incapacitated beneficiaries, guardianship clauses, maintenance of minor children and provision for the children of prior marriages or relationships.
Johnston Withers and our Wills & Estates lawyers have considerable experience acting for both Plaintiffs and Defendants in matters relating to contested estates. We can act where the validity of the Will is in dispute, or where further provision is sought under the Inheritance (Family Provision) Act despite the Will being otherwise valid.
Some Wills are challenged when it is alleged that a person did not have the mental capacity to sign the Will, or that someone applied undue pressure to the person when the Will was created. Please refer to our Contested Wills & Estates page.
Power of Attorney
A Power of Attorney is a document which allows someone else to act on your behalf in some circumstances where you cannot make those decisions for yourself (e.g. you are travelling overseas or hospitalised). You can appoint one or more people to look after your legal and financial affairs and ensure they are managed in your best interest.
You can limit the powers the person has, for example their ability to sell your property or manage your business affairs.
A Power of Attorney must be signed whilst you have the legal capacity and does not apply if you are mentally incapacitated. If you need advice, our Wills & Estates lawyers can assist you to make the right choices and decisions.
Enduring Power of Attorney
An enduring Power of Attorney is a Power of Attorney document designed to continue to operate if you lose your mental capacity.
Both Power of Attorneys and Enduring Power Attorneys give a person power to act for you in regard to legal and financial matters. They do not give a person the ability to make decisions concerning your welfare and lifestyle. To ensure you are establishing the right foundation for Power of Attorney, contact our Wills & Estates lawyers today.
Advance Care Directives
An Advanced Care Directive is a document that allows you to appoint a person, known as a Substitute Decision Maker to make certain lifestyle and welfare decisions for you should you become mentally incapacitated.
It includes lifestyle and accommodation decisions and may also include directions in relation to the medical treatment you are to receive in the event that you are terminally ill.
An Advanced Care Directive must be signed while you have mental capacity but is designed to commence in the event that you are no longer able to manage your affairs due to loss of mental capacity. Our Wills & Estates lawyers are the experts to ask about this before you make any major decisions.
Adelaide Estate administration
If you have been named the Executor of an Estate, or you are the next of kin of a person who has died without a will, our Wills & Estates lawyers can help you to fulfil your obligations and administer the estate.
We can help you
- identify the assets and liabilities of an estate
- obtain Probate or Letters of Administration
- pay the debts of the estate
- attend to asset transfers and sales
- help attend the registration of death on any jointly owned assets (e.g. real estate)
Johnston Withers can hold your Wills, Powers of Attorney, Advanced Care Directives and other testamentary documents in our secure deed safe at no additional cost.
This gives you the peace of mind that your documents are in a safe and secure location.
Johnston Withers can return these documents to you upon your request. We can also provide the documents to your attorney/decision maker if you lose capacity or to your executor if you pass away provided they produce evidence so we can maintain your confidentiality.
In addition to storing your documents securely in our deed safe, Johnston Withers offers, at no additional costs, to register our clients Wills with the Law Society of South Australia Will Registry.
The Will Registry is managed by the Law Society of South Australia and is a system which allows people to record the existence of their Will and at what law firm the document can be located. It is designed to ensure that people and their Executors to do not forget or lose track of where their Wills are kept.
The Will Registry can only be accessed by legal practitioners or their employers for the purpose of uploading information regarding a Will or looking for a Will for a client who has misplaced their documents or an executor.
Upon obtaining your permission, Johnston Withers will upload your information into the Will Registry. We do not upload a copy of your Will or information as to what is recorded in the Will.
This service is offered at no additional costs to our clients.
Frequently Asked Questions
Do I need a will if I have no assets?
It is always important to prepare a will if you have any assets in your name. Your will can allow you to distribute not only assets of value but also important sentimental items. In many cases your superannuation benefits, including a sizeable death benefit, may be paid into your estate. It is important not only to prepare a will but get expert advice about estate planning.
How does a lawyer assist with writing a will?
A lawyer will be able to prepare a legally valid will for you which properly sets out your wishes. The document will also be properly executed before the lawyer and another witness. A lawyer can also help you understand the way in which your assets pass upon your death including giving advice on how joint assets, assets under a family trust, superannuation and so on are dealt with on your death.
What specialisations do your lawyers have to be able to assist with wills?
Any lawyer can prepare a will however it is important to consult a lawyer that specialises in the area.
Lawyers who specialise in wills and estates are properly trained to:
1. Provide you with advice on how your assets are dealt with on your death
2. Prepare a legally valid will
3. Ensure the will is properly executed
4. Provide you with advise about any potential challenge to your will and discuss how best to minimise that risk
What are the conditions that make a will valid?
There are a number of factors that can affect whether or not a will is legally valid. The signing of the will can affect whether or not the will is valid. For example, if the will is not signed in front of two adult witnesses who are present at the same time, that may invalidate your will. Factors such as mental incapacity of the testator can also render what appears to be a valid will invalid if it can be established that the testator didn’t properly understand the nature of what they were doing. Undue influence or fraud can also invalidate a will. Having a lawyer prepare your will can significantly reduce if not eliminate the chance of your will being declared invalid.