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Welcome to The OMB Law Board, the podcast where legal insights meet practical advice. Hosted by Simon Bennett, Managing Partner at OMB Solicitors, this show delves into what you can expect when engaging with OMB Solicitors. Specialising in property law and commercial law, OMB also boasts dedicated teams for estate planning, contested estates, body corporate matters, litigation, and family law.
Each episode features in-depth discussions led by experienced team leaders, some with over 20 years of expertise. You'll gain valuable knowledge on initial consultations, cost assessments, timelines, and the importance of clear communication and confidentiality in legal matters.
Join us to break down barriers and navigate your legal journey with confidence. Tune in for expert advice, client stories, and tips on how to prepare for your legal needs. The OMB Law Board is your trusted source for all things legal.
Welcome back to the OMB Law Board. I'm Simon Bennett from OMB Solicitors. Today, I've got Harley Wilkinson with me, one of our estate team lawyers. We're going to talk all things estates and wills and all that sort of fun stuff, Harley. All the fun stuff. Yeah. So you found yourself drawn to this area of law? I did indeed. Yes, I find wills and estates fascinating. It's a really interesting, engaging area of law. personal aspect to it. Yeah. And I find one of your greatest strengths, your um ability to deal and relate to people going through often a really difficult situation in a very calm and relaxed and considered manner. Is that important? Yes. Yeah, absolutely. Yeah. I mean, you know, a lot of the time uh clients who are coming in for estate administration matters, you know, they're dealing with the loss of a loved one, usually a family member. It's, you know,
one of the most difficult times of their lives. So having an experienced and stable advisor who can guide them through and be personable with them and relate to them makes such a big difference. And the patience. You're so patient. And the patience. Yes. Yeah. It does make a big difference. You need to be very patient. Not a skill I have in my trick bag, unfortunately, which is why I'm not in that area. Let's go back to the start of the whole concept of this estates area. And it really draws me back to the will. The will is the start of it all, isn't it? Yeah, that's where it all starts. Yeah, yeah, that's right. And not everyone has a will, unfortunately. It's crazy, isn't it? Because the analogy I quite often use, Harley, is if I went to take your car, your pen, your mobile phone...
You'd probably fight me tooth and nail. Absolutely. But if you don't have a will, what you're saying is everything I own, everything that I've accumulated over my lifetime, I don't care what happens to it. I don't care. Just take it. Yeah, exactly. Yeah. So, yeah, by not having a will, you're essentially leaving it up to the law to dictate what happens to your assets and your property. And worse still, what you're doing is – you're leaving an absolute minefield and a headache for your loved ones because they're going to have to sort it out. Yeah, absolutely. It's fine for someone like me who knows exactly how to navigate everything. That's right. And even for people who do, again, it's dealing with the loss of a loved one. And no matter how knowledgeable, prepared you are for that, it's still traumatic. It's still really difficult to deal with.
that stress and that trauma for your family when you don't have a will. Yeah. That's so true, right? It's traumatic. You've just lost someone you love. And now you've got to try and pick up the pieces when they haven't told you what they want to do with everything. And you've got to work it out. Yeah, exactly. That's tough. And sometimes you've got to make an application to the court to even be allowed to do it that's that's exactly right. Yeah. So, you know that there seems to be a bit of a misconceptions sometimes for for young people in particular. They think, I don't have a lot of assets. I don't have a lot of property. I don't really need a will because it doesn't matter anyway. And yeah, you might not be dealing with significant financial resources, but it comes back to what who's actually going to be dealing with them. Yeah. And if you don't have a will, there's no one legally there and appointed with the authority to to deal with those assets, even though
they may not be very significant. Okay, so even if I don't own anything or very little, I still need a will? It's still important to have a will it's going to be your executor in your will, for example, who if you've got children, they look after your children. Everyone has a funeral or they go and get cremated and it's your executor in your will in the absence of any other directions who's going to make arrangements in respect of that. So this executor in the will, you nominate that person or persons? You do, yes. You can nominate up to four executives. It's really, really important when you're considering who to appoint because you need to have people you can trust and you can rely upon to attend to the timely administration of the estate. Okay. But it's not just a position. I mean, it is a position of power. I get it. But it's not just a position of power because it's a position of great responsibility as well, isn't it? It is, yeah. So the job of...
an executor, or even someone who's appointed by the court to be an administrator in the case of someone passing away in test state where they don't have a will. The job is to really identify that person's assets, call them into the estate, protect and preserve them, and at the appropriate time, distribute those assets to the beneficiaries who are entitled. Okay, so if I'm going to appoint someone an executor of my will, I should go out and speak to them, make sure they're happy to take on that position because there's responsibilities as well as powers. Absolutely, yes. It's really, really important to inform the person or the people you're thinking of appointing as an executor so that they're aware they're going to be appointed in the will because they can't do anything if they don't know. If they don't know you have a will equally, what can they do? They can't take any steps. So you might end up with your estate just sitting there for months and nothing happens.
Because your executors haven't been informed. Okay. So at OMB Solicitors, we strive to make people's lives better. We do indeed. People come in. They're going to do their will. They've seen the podcast. They've listened to what we've said. And it's time to get this will done. Let's do it now. Yeah. How do you go about it? What do you need? What should they do? What can they bring with them? How do we get prepared so it's a smooth transaction? Yeah. Book an appointment. Give us a call. Come in. See me. See Richard Dawson. We're the solicitors at OMB who do all this stuff. If you've got, you know, details about a family tree, a list of assets, liabilities, information about how your assets are owned, who's in your family, who you want your executives to be, who your beneficiaries are going to be, all that stuff, it's all relevant. So if people can bring that in with them, then we can be
we can have a really, really good overview about what's involved and the considerations we need to make for doing up a solid estate plan. And we've heard on one of the OMB Law Board podcast episodes about structuring. So quite often people have complex structures, trusts, companies, etc. Important they bring that stuff along? Absolutely, yes. So if you've got an interest in any sort of company structure, If you've got a trust of any sort, if you've got a self-managed super fund, even if you just have superannuation with a retail or industry super fund, bringing in copies of nominations, all of that is relevant. One of the most difficult things sometimes is talking to clients about how they own their assets. A lot of people just seem to think, oh, I own this, I own that. We've got to incorporate that into the will. And you realize weeks or months down the track that in fact,
They don't own any of those assets. Those assets are held in a trust, which changes everything. It does change everything because the will deals with your personal assets. But if you've taken good advice and you've got structures in place, for example, companies and trusts, what we're looking at in wills is who controls the company, who controls the trust, so that we're looking at trying to pass on the ultimate control of those entities through the will. That's exactly right. That's exactly right. It changes on a case-by-case basis. It always depends on, in the case of a trust, for example, it depends on the terms and the provisions of the trust. They're all a little bit different and they're all going to have different mechanisms by which you appoint a new or a replacement appointor or principal. Some of them will have automatic provisions where an executor or a spouse is appointed and you don't really need anything specific in the will. But
Even in cases like that, you've got to think, well, what happens if my spouse who's automatically appointed, they pass away or they're unable to act? What then? So it's always important to read the deed, as they say. And so we're dealing with who we're appointing in the executor. We're dealing with who we want to leave our assets to in our will. We might deal with how we want to be treated, cremation, burial, et cetera. We might express specific gifts and other wishes in there. What else can we cover in the will? Well, another really important thing, especially for parents, is who's going to look after your kids if you and your spouse can't? I think for parents who come in, that's probably one of the hardest things to wrestle with because for any parent, they're never going to have that perfect replacement. No one's ever going to be able to do as good a job as you at looking after your kids.
So that's a really, really important step and an important consideration to make if you've got children who are under the age of 18. So we can express our wishes of where we'd like our children to go and who would care for them, et cetera. So I think that's excellent. Even, you know, these days even pets as well. A lot of people have pets. Sometimes the pets are overlooked. That's right. That's right. And that's something to consider as well. Who's going to look after the pets? I think some people like their pets more than they like their kids. Yeah. Yeah, I think if my wife's listening, she'll definitely agree. The dogs are definitely the favourites. You might have to make some changes too. Yeah, I think she's probably got provision for them but not me. So that's fantastic. We've come in, we've got the will, and I think in subsequent episodes we'll talk more in detail about some of the really complex wills we can do, including testamentary trust and that, but not for today. So today we've got these wills and we've come in and we've done it. And just a word of warning.
A word of warning about these do-it-yourself type will arrangements. They're a bit of a nightmare. A bit of a nightmare. Yeah, that's right. I mean, I go back to law school and think about all the rules to get a valid will. I mean, I'm thinking paperclip, same pen, who's in the room, like little things can ruin your whole will. Yeah, that's right. In practice, you can come across a lot of different ways issues and things like that. And, you know, where you don't have the experience in the background in this particular area, there's no way of knowing what, you know, what you might miss or what you might do, how it's going to affect your estate administration. So you just don't know what you don't know. And it might affect your whole process. Wills largely are fairly inexpensive in the legal space. They're fairly simple.
See the OMB team to get one done because you and your team are just really good at this stuff and we should get it done. So I'm going to sign off on the will bit there for a second because there's another thing that I just want to talk to you about and it gets me every time is, you know, if you die or when you die, it's a certainty, right? Yes, it is. It's a certainty. Just like taxes. Just taxes. Okay, so when you die, the only thing that matters is the will. That's it, right? Yeah. But when you're alive, if you lose capacity, if you're injured, if you're sick, something like that happens, we need something else, don't we? We do. What is it? We do. So that's a separate legal document to your will, and that's called an enduring power of attorney. How does that work? So the enduring power of attorney is a legal instrument by which you appoint people who are called your attorneys.
And you appoint them to make decisions on your behalf about your personal, including health-related matters and financial matters and circumstances where you lack capacity and you aren't able to make decisions for yourself in respect of those things. So really, really important. And in practice, we find where we're preparing wills for a husband and wife, they've got a couple of kids, they do powers of attorney as well, they're normally appointing each other as executors. And it's the same... in their enduring power of attorney. So you have some continuation on there from who is acting as a power of attorney and who is acting as executor in the will. Yeah. So, you know, without this power of attorney, if I got sick or injured and I can't look after myself, I don't have my loved ones able to make decisions on my behalf about, you know, my care and how things are going to go. And I know that's based in really good grounding that
You know, we don't want abusive people who can't look after themselves. But when you've got someone you trust implicitly and who loves and cares for you, we want that person appointed, don't we? More often than not, yes. Yeah, and sometimes people do think that just sort of happens automatically, that it's going to be a spouse or children who will be able to just take on that role fluidly. It doesn't happen that way. So you've got to do the enduring power of attorney. You've got to... appoint people because you're you're giving them that authority legally to make those decisions on your behalf but a very powerful instrument uh when i appoint someone as my power of attorney they can do for me anything i can lawfully do for myself unless there's limits yes so it is powerful yeah they must act in my best interests that's exactly right yeah so in the the powers of attorney are as broad as they could possibly be unless you put limits or
Limits on the scope of the power that your attorneys have. And that can be in respect of property. It may be not selling a certain property, something like a farm that's been in the family for generations. It might be dealing with a particular share portfolio or other investments. And it can also relate to your health-related matters. So certain treatments and things you do and don't want, music you'd like to listen to when you're in hospital. You see it all. Okay. I think that's really informative and important because, you know, in the property specter and the commercial world, we also see them used for convenience. So someone could be traveling overseas, but they still need matters dealt with back here and they might need to have an attorney sign documentation for them or be available to deal with stuff. So very convenient to have someone if you if you do have a person that is in that position of absolute trust. Absolutely right. Yeah. And even with the enduring
powers of attorney, there are circumstances in which you can elect for the power in respect of financial matters to take effect immediately after all the parties have signed the document. So if you are overseas, for example, you can still have your attorney here looking after your financial affairs. And that can actually be quite a convenient thing in particular for people who are a little bit older, they might have difficulty getting around. often it's more convenient and just easier for them to have their children looking after their financial affairs anyway. So they can elect for the power to start immediately. Yeah, well, look, that's fantastic. And there's heaps of really good information for our listeners and our viewers out there, Harley. And I want to thank you for sharing some of your knowledge and your insight into this really important area of law with us today on the OMB Law Board.
You're very welcome, Simon. Thanks for having me. And to all our viewers and listeners, tune in next time for another episode of the OMB Law Board.