Johnathan - Wills and Estates

Hey, it's Aaron and Karina from Diagnostics and Finance. Here we're sitting with Jonathan Stonebraker from Stonebraker Lawyers. And so welcome here today. Jonathan, what we wanted to ask you about is wills and estates, and more specifically, around the planning of them. So what are wills and estates, and should we have it?

Sure. Well, yes. The short answer is yes, everyone should have a will. Wills and estates is primarily the process of putting into a formal legal document what you want to happen to your money and property. So your estate in the event of your death. And they're vitally important.

Okay, so how simple or complex can these plans be?

Look, they can range. A will, for example, could range from anywhere between two pages, even one page, if it's really, really simple, to.

More.

Like 100 or 200 pages. It really does depend on the complexity and how you want to get. Okay, fantastic.

And why would it be important to have a will in place for people in our customer base being a homeowner with a home loan?

Yeah, well, there are a couple things here. First, if that customer has children who are under the age of 18, this is just fundamentally important to see who will be taking care of those children in the event of their death, and in particular in the situation of a husband and a wife in the event of both of their deaths, where the minor children will be going to, and who will have the guardianship of those minor children. The other aspect would be you now have an asset, and you have an asset that can be divided up and paid out and sent to whomever you want. Now, when you have any estate, be it bank accounts or a property, you want to really be able to direct who gets that estate rather than relying on the general function of law. Because sometimes it would not go to whom you would think it would go to. Normally, that's the point of a will, is to really direct that activity. It also makes it so much simpler in the estate side. So when we talk about estates, property as a legal field, we're really talking about things like getting probate and letters of administration after death. So that's the actual power coming from the court, coming from the Supreme Court, to actually deal with the assets of a deceased person.

Okay, so I just have a quick question. So how would these be managed? Or who carries this out in the event that you were to pass away?

Yeah, yeah. So basically, if I either die or my law firm collapses and no longer exists for whatever reason, the next step would actually be to call the law society in New South Wales and say, you know, I had a will held by this law firm, stonebraker lawyers. They are in existence or the principal has died or something like that. And they would say, okay, well, these are the law firms in the area that took those wills, usually probably about two or three. And if you call one of those two or three law firms, they'll have your will. That. That's the process internally within the legal profession to deal with that.

Okay.

And with regards to, say, an individual, one of our clients, they take out a home loan, they've got kids, they don't have a will at the moment, and they engage your services. They get a will and estate in place or the plan in place, and then one of them dies. Who takes charge? There's a. Like an executor. What would be the role of the executor?

Yeah, so the executor, in many situations, you know, if they're married, the executor will generally be the other spouse. And then there'll be a substitute executor in the case that the other spouse has, you know, died before them or they both die at the same time. The executor's job is primarily to take the will and. And executed. So to see that the willmaker's wishes are actually put into practice.

Fantastic. And along with wills that get written up for in the event of death, there's another aspect of managing your affairs, if you're alive, or the power of attorney to help in the case of someone being invalid or not able to carry out their financial affairs or medical affairs. What is a power of attorney?

Yeah, so really, in New South Wales, we have two documents that deal with this issue. One would be an enduring power of attorney, and this deals with financial and legal matters. It's a document that you can actually have starting immediately. So often if it's a husband and wife, for example, and they have joint money, they may do an enduring power of attorney and have that start immediately for each other, because there's really no major issue in not starting that. Alternatively, you can have that only kick in when a medical practitioner certifies that you need assistance managing your affairs. And basically, this document is a very powerful document. It would enable you to draw funds from another person's bank account. It would enable you to even sell a real property asset. So sell a house or land if it were registered with the New South Wales Land Registry Services. The second document is what's called an enduring guardian document. And this document deals with health and lifestyle decisions. And unlike the enduring power of attorney, this Document can only come into effect when you have lost capacity, when the principal has lost capacity. So obviously there are really great moral and ethical reasons for that. We don't want to give away any ability to say, yes, I do want that medical treatment, or no, I don't want that medical treatment if the person still has capacity to make that decision. But this is the document that talks about whether or not you'll be going into a nursing home, whether or not you'll have end of life care and what that will look like. So the sort of common term of a do not resuscitate direction would normally be in an enduring guardian if they have it.

Okay, just another question. We've got customers that are single applicants, you know, in their 20s, buying their first home. We've got mum and dads with no children who might have multiple properties in their portfolio or a family of five, you know, with five dependents. There's such an array of people out there. Is this something that everybody should do or is it something that, you know, if you've only got assets, you should do? When, like when would it be important to put a will in place?

So really any major life event is probably a trigger to make sure that you have a will in place. So if you are single and have just bought a house or have a large asset portfolio, even if you don't own a property, you know, it's more about your total assets. You certainly should, because a lot of the. You're really not sure where your property, where your assets will end up going when you get married. Marriage, first off, generally annuls any will that was done previous or prior to contemplation of that marriage. So, you know, when you get married, you should do a will generally, especially if you have assets. And then when you have children, you have to. The importance of doing a will when you have children is a whole other step because it's not just your assets, but also the guardianship rights for your children.

Okay, sorry, you go, Irene.

My question was we can link the will and the power of attorneys together. Yeah, we can do them all at the same time.

Yeah, yeah. So basically the service that we offer is just a full suite document. So we'll do the will and we have the enduring power of attorney and enduring guardian for free. If you do the will, we don't charge any extra for those two documents at the same time. And then alternatively, if you already have a will or something, you can obviously come in and we'll do the enduring guardian and enduring power of attorney separately. So you have that flexibility there.

Great. And I just have one last one. Do you think it's worth having it or is it something that I don't necessarily need to have in place.

And should we spend the money on it?

Yeah, well, there are sort of two ways of answering that question. The first is to say, yes, absolutely, it's worth having a will. And part of that question is just ease on those who you leave behind when you die. So letters of administration, which is process, that happens when you do not have a formal will in place versus probate, a grant of probate, which is when you have a will, Letters of administration is a lot more work for those who are left behind and a little bit more difficult. And it takes longer to actually be able to distribute the estate and get the actual grant of letters of administration. Probate, on the other hand, is generally a fairly streamlined process. It's much easier and straightforward for those who are left behind. The other aspect here is, unfortunately, families, when dealing with the death of a loved one and dealing with the issue of finances and how to divide money, often will fall into dispute unless that's very clearly articulated. A will, by no means is a. Is a way of just preventing all dispute. But it does help and it does sort of go towards that direction of saying, well, this is actually what the person, the will maker themselves wanted when they made the will. This is their. Their wishes for dealing with the estate. And often people will respect those wishes. But unfortunately, not having a will really opens up the issue to having your different family members unfortunately come into conflict about how to divide your estate. And it's never a very good situation. Now, spending the money. Now, again, it depends on how much you value those two things that I've mentioned before. But fundamentally, yes, it's worth the money, especially for simple wills. I keep my costs very low and try to make sure to make it accessible to anyone who wants a will.

Fantastic.

It sounds like. Sorry, I was just gonna say, just sounds like having a will in place isn't for you to make things easier for your loved ones when you're not here anymore.

Well, that's exactly right. That's exactly right.

And, Jonathan, you work in two locations to be able to access your services. So you are linked into the office that we sit in. So obviously, clients watching this video can. And anyone watching this video can jump into the office where we are in Anningrove, and you have your primary office over in Windsor as well. So basically, the nuts and bolts of getting a will or estate in process for you is that you're flexible in two locations to be able to see the client and make sure that they're their last will and testament is well articulated and in place specifically for their needs.

That's right, yeah.

And I suppose how we're going to. As we post these videos, we do tag your contact details into different aspects, whether it's the social media or the email. But how can people contact you?

Sure.

Well, obviously they can give us a phone call to the office and phone number is on my website. They can go to my website, which is stonebreakerlawyers.com or they could send us an email. Or we're on Facebook as well, so contact that way.

Fantastic. Well, thank you for helping us enlighten everyone about wills and estate planning and making sure that everyone's wishes are upheld in the case. In the unfortunate case that they have to action the problem of death.

Yeah, yeah. Look, it's never something that people want to talk about, but unfortunately it is. One of the aspects of life is that we will all die and we will all therefore need to action more what happens with our estate when we do die. But thank you so much for having us having me, and it was great to talk to you.