The legal content of this episode does not replace advice from a solicitor. You should not rely on this information as legal advice and should seek professional legal advice based on your own personal circumstances and needs.
Transcript
Bryan McCartney
You’re listening to Ushering Death. Follow us on all good podcast apps or at answering death.com.au. Today on ushering death, I’m joined by William Hodgen. We’ve been trying to practice these all morning and I keep getting the name wrong. Hodgen is that right? That’s right. It happens all the time. Will is a solicitor from Mott and Associates Lawyers in Cleveland, is that right? That’s right. Perfect. So he’s here today and we’re going to talk about all things after death and managing someone’s estate and I guess the lead up to death. So wills, planning, estates administration, you’re going to clarify what probate is for us. Yes, the elusive question of probate. But before we do that, let’s talk a bit about you. Will, so you’re a solicitor, tell us about that journey. How did you become a solicitor?
William Hodgen
Sure. I can’t pinpoint an exact moment. It was always something I wanted to do. From a younger age, I realised that I wanted to use my talents to help people and talent, the ability to argue, yeah, I was gonna lead into that. I enjoy that. Yeah. And mediating conflicts as well with my my sisters as well. Yeah. So famously, my mum was saying when I was very young, they were having an argument and then I asked, does this involve me? But yeah, in all seriousness, there was a point, probably around grade 11, or, or 12. Perhaps when I decided that was what I wanted to do. I took legal studies in grade 11 and 12. And decided that was something I was interested in, and then went to university straight out of school and decided I enjoyed that and wanted to continue to be a solicitor.
Bryan McCartney
The journey to become a solicitor just doing legal studies, obviously, it’s pretty intense. Yeah. What was that like?
William Hodgen
Well, it involved for me, three years of study at university. I was in the first year, which had streamlined it used to be, I believe, four and a half years or perhaps four years. And they hadn’t removed some electives to make that three years. But it was fairly intense after that, approximately a year of postgraduate diploma, including some work experience with various firms and doing a practical legal trading course. So further study after that. And then from there, once you’ve completed that, you go through an admission process, which is basically an application to the Supreme Court in the jurisdiction you want to practice in. So Queensland, and that involves drafting affidavits and that sort of thing to talk about how you’re a good person that you’ve completed your study your prerequisites and that you’re a good person, so it involves putting your past misdeeds in the public record, but
Bryan McCartney
I don’t imagine there were too many parts.
William Hodgen
No, not for myself. But so
Bryan McCartney
what’s the difference between a barrister and a lawyer or lawyer and a solicitor? Like I guess there’s a couple of different terms in the legal fraternity for those things.
William Hodgen
So a lawyer is the umbrella term that is used to cover sort of both solicitor is what I am I work in a firm with other colleagues and you can you have more contact face to face with people every day. A barrister is someone who has taken a call to the bar, as that implies, and they’re sort of the courtroom advocate, the specialists, sort of lawyer who accepts briefs from solicitors. Some do accept direct briefs from clients, but typically, that’s how it’s done. So a client would instruct us we would instruct the barrister.
Bryan McCartney
Okay. So does that mean as a solicitor you don’t argue in court? Or
William Hodgen
oh, no, there’s solicitor advocates? Yeah, yeah, definitely. So there’s, yeah, there’s a place for solicitor advocacy, but typically, where it’s a very niche matter, or complex matter. And you want that barristers sort of specialised experience, I suppose. That’s when it’s appropriate to brief them. It might just be an advice brief, and then you do run the matter yourself. Okay. But yeah, if it’s something more technical.
Bryan McCartney
So if we were talking about health, for example, if you’d go to see a G, a GP show and they would give you a referral to a specialist, so that’s sort of technically a really good analogy ours to do. Okay, cool. And what area of law do you practice?
William Hodgen
Our firm’s general practice? We do. Of course, wills and estates. We do family law. Property is a big cornerstone of our business as well. We do commercial sort of law as well, litigation matters of all sorts. I did employment law. Back in Toowoomba, where I’m from, I I’ve done a little bit of that in college Avlon modern Associates, and we do criminal law as well.
Bryan McCartney
Wow. So literally the full spectrum of legal practice,
William Hodgen
apart from very specialised things. Yeah, we do just about anything. That must keep it pretty interesting for you. Definitely. Yeah. Yeah, it changes the way you think about things as well. And I think it’s good being general practice, because you can use that suppose broad range of knowledge and skills from each area that that requires it to then apply to other areas of your practice as well.
Bryan McCartney
And so is it everything you thought it was going to be?
William Hodgen
I’m not sure I had any particular expectations. It’s, it’s certainly not one that I regret doing. It’s, it’s certainly a great experience. I’ve really enjoyed doing what I’m doing at the moment. There are stressful days, of course, and coping with stress and anxiety is something that I think most, if not all lawyers struggle with. But yeah, it’s, it’s certainly been a rewarding experience. I would say,
Bryan McCartney
that’s a really interesting point, you know, that could dealing with stress and anxiety in a professional capacity. How do you sort of manage that as a solicitor?
William Hodgen
Well, I think that the legal practices is very aware of those issues broadly. They typically very supportive, if you’ve got colleagues, it’s encouraged that you would lean on them and ask for support and that sort of thing. Queensland Law Society QoS, also QoS offer a law care, which is sort of a certain number of hours of free psychology counselling, that sort of thing, which is specialised for lawyers. But typically, you’ve got to find some sort of coping mechanism, because you’re dealing with not only the stress and pressures of the job, that you’re dealing with other people’s anxieties as well. And it’s important not to take those on.
Bryan McCartney
And I imagine, you know, typically, like as a solicitor, you’re dealing with conflict a lot of the time and you know, that would definitely take its toll, especially as a mediator. So what about you personally? What are some of your coping mechanisms? Are they healthy? Are they unhealthy? You get called to a different bar. You’re coping,
William Hodgen
sometimes a mate of mine will hit up the bar, get a couple of drinks. Yeah, you know, drink every now and then just to sort of unwind but it’s important to watch those sorts of things because it’s so easy is a solicitor sometimes and well, barristers anyone in the legal profession, sometimes slipping down that that path where they maybe develop some perhaps not safe or healthy coping mechanisms. And yeah, yeah, for myself. My friends and family are a big support. I, I’ve learned very much to keep open with communication and talk about things that are struggling, that I’m struggling with, excuse me. And to make sure that if someone close to me is is worried about those sorts of things and just be open and honest with them. And I suppose to make sure that they know that they’re not the cause for my mood, okay. Simply Yep.
Bryan McCartney
Are you a moody solicitor? Well, is that what you’re telling us? Where
William Hodgen
it happens, but the job is a job and you’ve got to you’ve got to keep yourself professional,
Bryan McCartney
good stuff. All right, let’s dig into what it looks like after death. Actually, let’s start with the before death elements of you know, somebody’s estates. So I’ve had the privilege of will has done my will, my Power of Attorney my advance health directive, all those things that we should have in place and probably most of us don’t have in place right? What is there a percentage of people who do prepare with wills and that sort of stuff that you know, for?
William Hodgen
Those statistics I’m aware of? I have I haven’t had a chance to look but yeah, I haven’t dealt with too many what’s called intestate estates. That’s where somebody dies without a will
Bryan McCartney
say that for us again, intestate intestate. So we’re not saying interstate was a intestate state, a person that dies without a will in place? That’s right. Yeah, that must be a pretty challenging state. Yeah, to manage. Right.
William Hodgen
It is because the law does have rules regarding administration of intestate estates. But they’re it’s a very rigid framework that quite often doesn’t match what a testator. That’s the person who writes the will or the deceased person, what the deceased person wanted. And also, a will allows you to direct that so the laws of intestacy won’t apply and that what you put in your will will be followed.
Bryan McCartney
Okay. Could you give us sort of a brief overview of those rigidity of the administration of a person who dies intestate?
William Hodgen
Sure so it depends on your fate. Only circumstances I’ll use the example of if you pre decease a spouse and children. So in the case that you pre decease a spouse, and you have two children, for example, the estate would be divided in that case, to be $150,000 of the estate, plus all household, chattels and 1/3 of the rest and residue, which has everything leftover after payment of expenses and that sort of thing to the spouse, and the remaining two thirds of the rest and residue would be given to the children on trust if they’re under 18.
Bryan McCartney
So when you talk about spouse, are we talking married spouse? Are we talking to fact those spouse what is a de facto spouse? How do we define that?
William Hodgen
Yes. So both the law does recognise de facto spouses as spouses if the will describes somebody as a spouse, it does include de facto Okay,
Bryan McCartney
in that state of person being intestate, though, so what what actually defines a spouse or a de facto spousal? Let’s say,
William Hodgen
so the there is legislation that sets out what that is, and it does broadly, I don’t have it in front of me, I can’t quote, it does. I should have said at the at the top of the recording, any advice that I give is general in nature. So please don’t accept this as legal advice. If you do have a legal question, you should seek specific advice from a solicitor practising in that area.
Bryan McCartney
And we’ll actually put the contact details for my associates into the podcast notes. So anyone who wants to talk with will or make an appointment to see him to get their affairs in order? I can certainly do that.
William Hodgen
Yeah, sure. So your question was what defines a spec? Yeah. So it’s set out in an act called the acts interpretation act. So that’s an act that defines some terms or meanings of words and that sort of thing.
Bryan McCartney
And that act is specifically that’s not just for wills and estates, that’s broad across the range of acts that are in place in Queensland that helps to define the things that might be ambiguous, or that sort of stuff through other pieces of legislation is that that’s right,
William Hodgen
yeah. So different pieces of legislation will typically have their own definitions shedule to define specific terms, or a section might define what that term means in that section. So if it isn’t there, then one of the places that you would look is the acts interpretation act. So, for example, the laws regarding administration of estates do refer to the acts interpretation act for what a spouse means.
Bryan McCartney
Okay. So if we’re talking about a de facto, is there a period and if you’re not willing to commit, that’s fine. But is, is there a period of time that a person needs to be with another person to be classed as de facto? Are there financial things that need to be in place? So there, you know, sometimes you hear people talk about but we didn’t share finances, we only live together. So is that more cohabitation or what actually is is a de facto?
William Hodgen
Well, in the family law context. There’s certain what are called indicia or certain factors that are to be taken into account. And the judge basically has discretion to decide if there was a de facto relationship but in the context of estates, it does define that you are in a cohabitated relationship with the person for at least two years, ending on the date of the deceased spouse’s death.
Bryan McCartney
Okay. And that cohabitation, so that means living together. Is there any other definitions of the cohabitation? So living together, sharing finances or
William Hodgen
all I think that those things would be Yeah, sort of indicative? Yeah. Okay. Yeah. All right.
Bryan McCartney
No worries. So that’s for a person is there like a particular example of where you’ve looked after someone or an estate that was a person who died intestate? That was particularly messy that you can recall without going into too much? Sure.
William Hodgen
Yeah. A couple of years ago, when I was practising in Toowoomba, there was an estate where it was a young family, the father had passed away. That was a de facto relationship. So there wasn’t too much argument over that. Or at all. Yeah. They, I believe, yes. So the young family was a wife or the mother and two young children. And the estate was not a particularly large one. There was a house, which was the major asset of the of the estate, which I believe was just in the father’s name. It was a couple of years ago, I can’t remember exactly, but I believe it was just in the father’s name, which had to be dealt with under the rest and residue provisions. So the mother got all of the household contents and various other parts of the estate. I don’t believe that there was enough to come up to that $150,000 So she got technically 1/3 of the title to the house and the remaining two thirds was her as the personal representative or the the executor. Right? So, I should have also mentioned with intestate estates, somebody doesn’t have an automatic right in the same way that if you’d signed a will to administer the estate they need to apply to do that.
Bryan McCartney
So we’re talking about in a Will you appoint an executor through multiple executors. So a person who’s intestate, so it doesn’t necessarily just go to their next of kin, for example, there’s no automatic allocation,
William Hodgen
there is a priority in what’s called the uniform civil procedure rules, which sets out and the succession act as well, which do set out who has priority to to apply? And then what’s involved in that as an application to the court. So this might be a better safe when we talk about the probate. Yeah, the joys of pro Yeah, so that that process involves an application to the court and then basically, to cover off anyone who might have had priority before you to say why they’re not applying, perhaps they don’t want to or that person might not exist, there might not be a person of that class of people, or they might be deceased, for example.
Bryan McCartney
Okay, so we’ve talked all about people who are intestate. So let’s talk about the benefits or actually let’s talk about the process. And then the benefits of actually putting a will in place, what does it look like?
William Hodgen
So typically, people would contact us for the initial appointment, we then sit down with them for about an hour, an hour and a half, sometimes just to chat about general things we talked about, typically, what your asset, sorry, your estate comprises in terms of assets, liabilities, your family circumstances, any children, partners, dogs, sometimes, and other things. So that’s important to know, because there’s a certain class of people, there’s certain types of people who can contest an estate, perhaps that’s putting up for the horse a bit there. But we need to know these sorts of things about family circumstances. We then chat about those things, and then talk about who we want to appoint as executives, as guardians, if there’s any children underneath 18 years of age, or dogs or dogs. And we get to the estate division, so you can specify particular assets that you would like to go to particular beneficiaries. And then we talked about the residue, which is everything left over after payment of any expenses and that sort of thing. And then that can be divided up either percentages or fractions or those. Yeah.
Bryan McCartney
And how in depth do you go when you sort of, you know, listing a person’s estate? Like, do we go to that as far as saying, you know, grandma’s Blue Sapphire gold ring with the three diamonds goes to this person? And this, you know, the diamond ring goes to this one? Or is it more of an umbrella? Or? Or can someone goes depth in depth as they want?
William Hodgen
Yeah, sure. If they want to, I mean, it’s what a wheel is about is the person’s intentions, it’s about what they want done with their assets after they pass away. So the idea is that you appoint your executor as the trustee of your estate, to do the things that you set out, basically. So you can go as granular as grandma’s sapphire ring with the three diamonds and that sort of thing. You can do that. Or you can just broadly say my jewellery to go to this person, or you can say my jewellery equally between, you know, Emily, Jane and whoever else. As as broad as that if you’d like, yeah,
Bryan McCartney
you raise before contest of a person’s will? Yeah, let’s talk about that. Okay, especially when we’re talking about being granular with those instructions, you know, might be that you put an umbrella of all my jewellery goes to Emma Jane and Milly, or whatever, and then they start fighting over who gets the Sapphire Reagan who gets the diamond ring. So is that can someone contest on those grounds? Or what are the grounds of being able to contest a well?
William Hodgen
Sure. So a person who is a spouse, as we’ve talked about definition of a spouse includes de facto a child, which includes a stepchild, adopted child, those sorts of things, or otherwise are dependent so they could be family or friends, if they’re dependent on the deceased person. They’re the three classes of people who can apply for what’s called further and better provision or a family provision application. So that’s the first question that they’d have to satisfy the the court. The second question is have they been left adequate provision, so it requires an examination of a person’s sort of financial standing, their expenses and that sort of thing, but it also involves a little bit of examining what the relationship was between the applicant and the deceased person to see if there was any, I suppose was moral obligation or if there was an expectation that they would be given an amount in the will.
Bryan McCartney
Okay? Let’s look at a hypothetical. Let’s see how we go. Let’s say that we have a person who passes and they have a William place, they have a partner, two children, and those three people are listed in that will as the beneficiaries. Let’s say the parent of the deceased, or one of the parents of the deceased, then decides they don’t believe that the will is right, because the relationship and separated prior to the person’s death, is the parent then able to contest the will.
William Hodgen
So in that example, what do you mean with the the beneficiaries?
Bryan McCartney
Yeah, so let’s say the partner or the spouse of the deceased, that say they had broken up, yeah, three months prior to the person’s passing. And the person dies in specifically tragic circumstances. And then the parents feel of the deceased feel that the ex spouse is no longer entitled and everything could go to the children or that sort of thing.
William Hodgen
Oh, the parents of the deceased? Yeah. All right. So it would depend if a
Bryan McCartney
telephone for Yeah. So the.
William Hodgen
So the parents wouldn’t be as of right. Eligible applicants? There’s a couple of ways you question there. So yeah, they would have to establish that they were dependent. So if, for example, you know, son was maintaining them paying some expenses or taking them around or something like that, if they were financially dependent, in a sense, then they may be eligible applicants. It would depend if for the wife, if if she was wife, if they were married, that wouldn’t really matter in terms of whether she’s eligible to receive a gift dishes, if she’s eligible, eligible to contest the estate. So if she’s married, they pass away, even if they’ve separated, that doesn’t revoke it will.
Bryan McCartney
Okay. So even if a person, let’s say they’ve been separated for quite a long time, and the deceased hadn’t ever gotten around, you know, I’m sure you hear it all the time, they never got around to updating their wills. So that person is still that doesn’t disqualify or or remove them from being a beneficiary unless the will is updated to reflect it.
William Hodgen
Yeah. So it’s important to make sure your wills updated. There’s, there’s a lot of certain steps that can be taken to automatically revoke or will, but you don’t want that you want to actively do it yourself to make sure that you’ve got the right circumstances updated. But if you’ve separated for someone, from someone that you’re married to, you still don’t want them to receive a gift. But you’ve left that in your will. The important thing is the divorce separation doesn’t automatically revoke any gift or appointment of executor. Yeah.
Bryan McCartney
Okay. So, all right, we’ve talked about that. We’ve talked about the process we come in, we see well, we do our will, and how often should we update it like,
William Hodgen
definitely, in a case of significant change in your financial circumstances. So for example, after you’ve purchased a new house, or a new commercial property or something like that, you should definitely definitely consider whether your current will, will stand the test of time. Basically, if it’s going to be suitable. You should review it at least every three years. Otherwise, there’s there’s no sort of legal backing, there’s no there’s there’s no requirement. There’s no requirement, there’s nothing I can point to to say, Look, you must review it every three years. But it’s just suggested, just to make sure, good. Hey, yeah, good practice, just to make sure. Does this address my needs? Have my needs changed? Have my wants changed? That sort of thing? If I’ve decided I want to give something else to something that someone else? But otherwise, yes, if you’ve changed circumstances, then you should definitely do it. Of course, if you had a child, you should consider updating your will, if you’ve re partnered, those sorts of things. Yeah. Or if any of your beneficiaries or even your executive passes away. If you don’t have backup executives, it can be a headache.
Bryan McCartney
Yeah. What happens in that circumstance where a person has an active will in place, but the let’s say, for example, their executive died at the same time they do for was a motor vehicle accident, for example.
William Hodgen
That’s why we recommend having a backup executor, but it may not you may only trust one person or one or two people and there may not be available if they’ve not got mental capacity to do it. Or if they’ve passed away at the same time, or if they don’t want to, they can renounce as well. In that case, yes, it would then fall to somebody to apply for what’s called Letters of administration on the web, which is similar to probate, in a sense. Yeah. Okay.
Bryan McCartney
So when you’re actually doing your work, like when you’re putting your board together for the first time, that’s not the only thing that you really should do. Is it like, is there some other things they’re like, yeah, what other things should we be doing at the same time,
William Hodgen
so definitely around the same time, you should Consider doing an enduring power of attorney. And that’s a document which you put in place for somebody to look after your personal affairs, your financial affairs, or both. In the event that you lose capacity, either permanently or temporarily, they will then have broad power to do almost anything that you can lawfully do on your own behalf. There’s some exceptions, for example, they they’re not allowed to inquire after. If if you decided then to create a new power of attorney, they can’t look at the instructions for that. That’s just one example. They can do pretty much anything on on your behalf. But you can put restrictions on that as well. But that’s important because you can specify when the power is to take effect. For example, if you lose capacity, that’s what most people do, but it depends on what’s right for them. At the moment, they lose capacity. You can nominate when financial powers take effect for general powers. So for health, but not including end of life decisions and that sort of thing, just by virtue of the power of attorney alone, enduring power of attorney power of attorney that really the same thing, but enduring power of attorney for individuals. They can only make those decisions when a person has lost capacity for general health matters.
Bryan McCartney
Okay. And I guess one thing people don’t always understand is that when a person passes, that power of attorney ceases to exist. That’s right. There’s nobody to have a power of attorney either over.
William Hodgen
That’s correct. And a lot of people come in saying, Oh, I’m preparing my power of attorney, this person, like, Okay, well, they’re deceased. Yes. And so from that point, that the will activates the power of attorney is revoked, it has no further effect,
Bryan McCartney
the executor of the will will then take those responsible. That’s right. And they may
William Hodgen
be the same person, but sometimes or not. But it’s the executor named in the will or executors. So you might, for example, you can only have four executives appointed under the Trust Act and legislation and law, common common law, which is just cases, you can have for executives appointed, you can have them all appointed at the same time. But sometimes, you know, too many cooks. So
Bryan McCartney
that sounds like a headache.
William Hodgen
I have had some mistakes with three or four executives three is manageable for gets a bit much. Yeah. But I mean, if that’s what you want, that’s totally fine. But you can have four total appointed, so you might want to have one or two, jointly, and then successively after one or both of them have, after both of them have passed away, or renounce or lose mental capacity can fall to the next person or more people.
Bryan McCartney
And you can also stipulate in your will as well, whether you want your executor if you have more than one executive, whether you want them to operate independently or jointly, is that right?
William Hodgen
Yes. So you can’t have a joint appointment and only have one of them make a decision. If you appoint them jointly, they must both make the decision together. It’s it’s rare, but the circumstances could be that one of them makes a decision on behalf of the estate, which does bind the estate. Without the other executors knowledge. I haven’t seen that myself personally. Most up, for example, banks, if they see that there’s a joint appointment, they’re not going to do it on the say. So one executor, they’re going to need signatures on on from both.
Bryan McCartney
Okay. So we’ve done our will we’ve done our enduring power of attorney. Yes. What else should we do?
William Hodgen
An advance health directive is something else I would consider. And not just for elderly people or someone who’s just been diagnosed with a terminal illness. It can happen to anybody can happen suddenly, it can happen to young people. You know, I had an estate where just prior to that estate, coming through our door, it was a young bloke, I think it was around 2526 around my sort of age. And he had developed cancer of some sort, I believe it was bowel cancer. And he was doing well. He was doing really well with his business. He was a self starter, and he did all of that. And then he had developed bowel cancer. And he was furious. He was very, very, he was very annoyed at how things have panned out. But yeah, he I’m not sure it was before I got to mountain associates by that time, but there was an estate when I did get there. But he had I’m not sure if he did have a advance health directive but it just goes to show that can happen to anyone Yeah, to get healthier. So in advance health directive is something that you put in place to express your wishes regarding a if you have a terminal illness or
Bryan McCartney
or a serious accident, serious support, all that sort of stuff. That’s right.
William Hodgen
Yeah. So anything that you might be temporarily unable to Thanks for finding my words. No, that’s okay. Anything that you might be temporarily unable to make decisions regarding your health. For example, if you if you’re in a coma or if you have a serious illness that you are expected to pass away within the next 12 months or something like that, that you at any communicate your wishes, which is the important point that your attorneys under your enduring power of attorney can make decisions or if you nominate separate attorneys under that advance health directive, they can make those decisions on your behalf. What’s involved in that is that we would draft up that document initially, the person the principal, so the principal is the person it’s about, for the enduring power of attorney, the advance health directive. And they then have to, for the advance health directive have an interview with a GP or a doctor. And they go through basically a capacity test to make sure they understand the nature and effect of the decisions that they’re they’re expressing or the wishes they’re expressing. And to make sure that their mental capacity is not impaired by any sort of disease or illness or something like that. Yeah. And then they returned to us, and then we we sign that with them.
Bryan McCartney
While I’m still gonna get back to you. Well, it’s only been a year. And I remember actually, I was really specific I wanted my executor of my will to be my mother, Leanne, happen happily trust her to look after my finances and the dog and all that sort of stuff. But I wanted my health directive to be somebody different because I had some fairly specific requirements around it capacity, and those sorts of things where I wouldn’t have thought my mother would have been comfortable making those decisions on my wishes. So you’re in person doesn’t have to be the same for all of those things. Do they? You could have a different executor, a different power of attorney and a different person for your events health directive, and that’s completely okay.
William Hodgen
Yeah, yeah. So you might trust somebody to deal with your affairs, post your death, yeah, after sorting, and have an appropriate amount of time has passed, I’ve gone through the grieving process and that sort of thing. And then they can deal with the financial side of things. But you might want someone who you believe is going to be immediately capable of looking after your affairs in the event, you lose capacity, you haven’t passed away. And that’s at that point that you would want someone to be your enduring power of attorney here.
Bryan McCartney
And I think my turn my words at the time were, I know that my cousin would happily switch off the life my life support, she wouldn’t think twice about it. But mum would probably have a bit of a struggle in turning off the machines. Yeah, you know, that’s, that’s around my own personal choices and those sorts of things. we likely to see a change to wills and estates and that sort of thing with the introduction of the voluntary assisted dying laws. Do you think
William Hodgen
or? I’m not sure I’m not I’m not sure if I’m best qualified to answer that. But I think with the voluntary assisted dying laws, I think that they’ll have more of an impact on the advance health directive and during powers of attorney, I’m not sure so much with the will because that only takes effect after he passed away, of course. So wills, I would think would remain largely the same. But yeah, I haven’t had a good close look at those laws. But understand that there’s a process to go through. And there’s certain notifications or requests that a person who’s dying can make. There’s certain timeframes, and those can be expedited in the case of urgent, the urgent need to sign off by a doctor basically.
Bryan McCartney
Yeah. Okay. You’ve mentioned a couple of times. And while we’ve been talking about the capacity to make these decisions, so can you talk to us a bit about what capacity actually means in the legal sense of an estate or estate planning?
William Hodgen
Sure. So it’s a slightly different sort of test between wills and enduring power of attorney for making one. So a person has to have testamentary capacity to make a will. So what’s involved with that is, it’s basically for the solicitor to check and gather evidence if necessary, if we have some specific concerns or doubts or something like that, to make sure that we are best covering the test data, in the case that there’s a contest later. So the when I mentioned earlier about the family provision application, that isn’t necessarily a contest of that will is not valid, you can make a separate application to a court to say that A will is not valid, and you can seek to have it turned over. So what we do in terms of assessing capacity is that we have a little checklist there that we make sure that a person understands what their estate is that they understand who they want to give that to that they’re not suffering any delusions or anything which might impair their decision making capacity or duress. duress absolutely is a big one. So that’s why we want to make sure that a person who’s seeing us is very clearly there of their own free will quite often, you know, someone will come in like I’m not interested in being here. I don’t want to update my will but you know, my son and daughter are saying you need to have an updated so, in that case, if you sort of approach it cautiously. I would not think in that case, duress, generally that
Bryan McCartney
Mr. S might be subtle managing children. Yeah, yeah.
William Hodgen
So that’s why you want to say sort of, look, I need to make sure that you actually want to be here and that you’re giving me instructions of your own free will. So I run through a couple of questions. And if necessary, a letter of capacity from a doctor. In the cases where a client might be elderly or advanced in years, and you want to just make sure that they’ve got that capacity there. I’ve met with people, you know, in their sort of middle aged years, and I’ve been, I don’t know what you’re here for. And then I’ve met with people who are in their 80s, and 90s. And their sharpest attack. Yeah, they know exactly what they have. They don’t need to refer to bank statements or anything like that. They can remember all the names of all their grandkids and kids and family, friends, everything like that, and everything they want to do, and they have such a clear indication of what they want to do. And it is just it’s an individual test. It’s a it’s a case by case thing. I’m not just broad, brushing it. But yeah, solicitors have to be very alert to those sorts of things. Yeah.
Bryan McCartney
And so that’s a good point. So age, whether it be young, middle, or elderly doesn’t necessarily guarantee capacity. So that’s what I’m looking at all those different bits and pieces to make sure capacity exists.
William Hodgen
That’s right. And that’s part of why go to a solicitor as well, to make sure that those things are covered. So quite often, I will put a question to a client that I want them usually at the outset, this is going to involve some very weird questions, I’m going to ask you some very specific things. And I promise they all have a purpose. And they think sometimes people come in and just think, Oh, I just want to do this, I just want to one thing actually is a lot of spouses come in, and they don’t think to appoint each other as executors or as the primary beneficiary. Because they just think that happens is matter, of course. And I’ll have to say no, you have to put that in there. Because if you pass away, then your spouse will be able to contest your estate, and they’ll have a good shot because they espouse You haven’t left them anything. So I mean, in most cases, I should say generally, they’ll have a good shot, they’ll those sorts of things. I do have to raise with people. But yeah, there’s some strange questions, I have to ask people to make sure that they’ve thought of everything. And sometimes they think, Oh, well, I didn’t think of that. Actually, that’s changed my whole worldview on on what I want to do with my will.
Bryan McCartney
Has there been a particularly strange question that sticks in your mind or the response that was particularly memorable?
William Hodgen
I had a client who I’d asked him about his family. So it wasn’t a particularly strange question. I’d asked him about it, how many children he had, and it was a split family. So two people who had been divorced before, they were in a de facto relationship, so I had to see them separately. I asked both of them about their children. They both had adult children. And then this world was particularly complex, I had to see them both three times in total. Normally, it would just be two appointments that we would meet with them sign the we’ll send out the draft, get the Okay. And then they come in to sign. I had to meet with them a second time to go over some things. And father then came back and said, Oh, yeah, I forgot that I. And I was Oh, okay. That is important to tell me. So it changes things. Because I have to say, Well, if you’re not making any provision for them that I need to advise you of the risk of a family provision application, but also, not just in the Queensland jurisdiction, any jurisdiction that you have assets. So if, for example, there was a bank account overseas, or if you had property overseas, or in another state, for example, New South Wales, there could be a separate claim brought there. Yeah. Wow. For those assets. Yeah.
Bryan McCartney
All right. Let’s talk about the almighty probate. But let’s start with before you talked about letters of administration. So let’s talk first about letters of administration. And then let’s talk about the dreaded probate.
William Hodgen
Okay, so they’re pretty similar in nature. So the letters of administration, there’s one grant with a will, and one without a will. So I’ll start because I started with intestate estates. I’ll start with the letters of administration without a will. So that would be someone who applies to the Supreme Court of the state. So for us, we deal primarily in Queensland states, of course, we would apply to the Queensland Supreme Court for letters of administration without the wills. So that’s where you have to administer the estate according to the intestacy rules, and a person applying has to be listed as an eligible applicant under the Uniform civil procedure rules as a person in priority and they have to as I said, clear off that they if they’re not the first in priority, that why that is why people are Earlier in the list have not applied if they can, or why they haven’t, you then get a grant of administration. So involved in both applications, letters of administration or probate is an advertisement in what’s called the Queensland law reporter. And that they used to be until about four years ago. Perhaps slightly earlier, around four years ago, I think it was November 2018, there was a requirement to advertise in the in a local paper, which circulates in the place that a person lives. Basically, the purpose of the advertisement is to make sure that everyone who has had an opportunity to or could have an opportunity to contest the estate is aware that the person has passed away, and that somebody intends to apply for a grant of representation, whether it’s letters of administration or probate, they then leave that advertisement in the Queensland law reporter, so we don’t have to do the newspaper, one anymore, the Queensland law reporter, we leave two weeks from the date that the notice was published, we also send a copy of that to the public trustee, to make sure that they haven’t any copies of later wills, for example. And from there, we leave that for two weeks until after the expiry of that if we haven’t received any notices, that person can then apply to the Supreme Court, they can still apply. And then somebody can still lodge a caveat in the registry. They can, they can get all of that together within those two weeks, but they can’t lodge that application up until the expiry of those two weeks.
Bryan McCartney
And I guess that makes sense for fractured families. So if we’re talking about you know, someone who’s been divorced, or someone who’s you know, estranged from their parents or from their children, that sort of stuff. So it makes sense to advertise that the person has passed. I imagine some crazy people crawl out of the woodwork at times, though, would that be right? Or people are generally okay with that sort of thing? Yeah, I mean,
William Hodgen
in most cases, the person is already aware that they’ve passed away. So they, how maybe if they’re particularly interested in applying for a further and better provision, they’re typically And broadly speaking, they’re entitled to a copy of the will, if they’re a named beneficiary, or if they’ve been a beneficiary of previous wills, or things like that. Yeah, again, I don’t have the legislation for this particular people who can who are entitled to request a copy of the will, they then can see if they’re happy with what they’ve got, if they’re not, then they can apply. So the purpose of the advertisement is for that, but also if there’s any creditors of the estate, so they’re aware and can make claims against the estate and prove their claim, basically. So yeah, at that point, you know, you might have an estranged relative, that, like a daughter that you’ve not seen, or a son that you’ve not seen in, you know, 2030 years, come out and say, I am entitled, I’m an eligible applicant. And then
Bryan McCartney
I am reminded of a situation I answered the phone in the office one day for our funeral business, and a woman was on the phone. And she said, You know, I’ve just seen on your website four months ago that you looked after my mum’s funeral. And, you know, that was the way that she had found out, Googled her mom and our tribute online. tributed come up, and she wasn’t aware. And they’d been estranged for a number of years, but she had thought potentially one of her siblings would have done it the courtesy of getting in contact. Yeah, didn’t so I remember just thinking, Oh, shit. Like, that’s not a comment. Like, that’s not the conversation I wanted to have with someone’s Yeah. And I really felt for obviously, not knowing the dynamic of the family. Yeah, you know, that that compassion, that compassionate funeral director that I am all of a sudden was like, Oh, God, like, that’s horrible. But it really is, you know, it’s, it’s something that has happened more than once to me now in my career, which has been really, really strange.
William Hodgen
Yeah. Now that that must be horrible. I have had a similar experience where I, I believe the child was aware that their parent was in failing health, not that they passed away. But their first indication from anybody that their parent had passed away was our letter to them saying, Hey, you’re a named beneficiary. Here’s a copy of the will saying, Oh, my God, have they passed away and like Yeah, yeah, they have Yeah. Wow. So that was a tough conversation. I’d have a long chat with him switch off the timer bill and just just Yeah, because I build those hours. Well, no, not not not on that one. The boss
Bryan McCartney
is gonna be happy
Bryan McCartney
all right. What the heck is probate
William Hodgen
probate is very similar. So probate is when you apply your the named executor or your and a named executor to the will and you submit the will to the Supreme Court. So it’s the same process you advertise you give creditors and benefit and potential beneficiaries or claimants the chance to claim against the estate or lodge located in the registry if they think that will is invalid or that will is has some issues or some questions about duress or capacity or something like that you can lodge KB in the registry. So probate is basically the proving of the will, where it’s put to the Supreme Court, you as the applicant, the executor put forward an application and affidavit attesting to certain matters, saying that you are the person name. There’s no disqualifying factors such as your previous bankruptcy or something like that, or you haven’t. There’s no factors such as duress or not nothing that would disqualify you from being an executor, and that the state is in Queensland and those sorts of things. And the Supreme Court then examines the will to make sure there’s been no tampering with that will. So you submit the original Yeah, Supreme Court examines it to make sure that there’s nothing if there are, for example, I did have an estate fairly recently, within the last six months where a solicitor had or firm up I shouldn’t say that solicitor had on stapled a an original will to feed through a scanner, and then re stapled, which you wouldn’t think would be a big issue, but it is because it then shows evidence of tampering because you don’t know what other pages have been substituted in, for example. So it involves then what’s called an affidavit of plight and condition which comes from the person who’s tampered with the will basically say or, or if they’ve discovered a will in poor condition. So you might keep it in your safe custody, I mean, safe custody services, most solicitors who practice in wills and estates will offer that service typically free of charge, it would vary. And it would be very rare the circumstances that safe custody services would be impacted, you know, typically in fireproof safes or something like that. But if a will has been discovered in poor condition, that needs to be an affidavit attesting to the circumstances surrounding that in which the will was discovered. And then the Supreme Court has to really scrutinise that and the will to make sure that the wills okay, but assuming that it’s fine, they look over the world and make sure it’s all okay. They make sure that the person applying is a named executor entitled to apply and then they issue a certificate of probate, which effectively protects the executors in the event that they administer the estate, which is basically dividing the assets between the beneficiaries by the terms of the will. Okay. I should say also, in administering the estate, and this is not it’s related to probate, but not directly on point in administering the estate, the succession act outlines a couple of statutory timeframes. So in theory, you could administer an estate and be finalised in a month. But we that would be very rare circumstances it would be probably not appropriate. Oh, no, no, no, no, no, no, not at all. Because it’s dependent on the Supreme Court and they think about it, they are servicing most of the entire state. Yeah, there are Supreme Court registries, not just in Brisbane, but in Rockhampton and and some other places who would be able to deal with those things. But most applications, as I understand from the Chief Justice is to the Brisbane registry. So it is a process to wait for your turn basically. So they they deal with them. So back to what I was saying with the administration timeframe. So the Act sets out that a personal representative or an executor will not have personal liability, if they administer an estate post six months, provided they have not received notice of a claim from an eligible applicant. And if they have received notice, after nine months, so and they haven’t received notice of the application having been made, right? So we give advice to people on these timeframes. I typically tell people it’s not going to be before six months unless you know, we can really wrap this up quickly. Probate is not required, and we can get through it. And I’ve given you that advice about risks and that sort of thing. Yeah, because of course, there might be some outstanding tax obligations, and the state might have to pay some tax as well for any any income that it earns during the the administration period. I’m not a tax lawyer. I’m not an accountant. So let’s talk about if tax is going to apply, but that’s the sort of thing we say but it is a possibility.
Bryan McCartney
It is yeah, definitely. Is there an amount of money or a value of an estate that makes it a requirement to have probate or is every will required to get probate
William Hodgen
not every will. But typically banks for example, Whether the most likely asset holder who’s going to request it, I’m not sure if there’s I’ve not seen legislation that says that it’s required in a particular benchmark or threshold. But typically, a bank will set out their requirements. So what’s involved in the initial intake appointment with an executor, or a person who’s wanting to administer the estate is that we run through the assets and liabilities of the estate. And we get roughly as as broadly as we can, what the values of each of those things are. So as I understand it, most banks will request probate where they hold assets exceeding $50,000. Okay. It would vary between banks, and it would depend on their requirements. So you can request when you write to them, you effectively say that you’re acting for the estate, and to for their list of requirements and any documents that are required to release the asset to the estate. Okay, yeah. And then they may respond with saying that we need a grant of representation. So executives don’t have to wait for that if they know that a bank is going to require probate or if they want to apply for that protection, they can instruct us to do so. Another thing, which is very common as if a person resides in a retirement village or aged care facility, they will often have in their purchase documents. So it’s important to get advice on those before you sign as well, to say that on release of the RA D re, refundable accommodation deposit, or the ongoing contribution or something like that, however, it’s structured on return of that. Excuse me, so to release the the amount that’s been paid to that facility, they will often require probate as well, right. And they can set that out in the contract, because they
Bryan McCartney
get to hold on to the money for a bit longer. Build a bit more interest.
William Hodgen
Yeah. And that’s a whole different kettle of fish. Yeah.
Bryan McCartney
Okay. So probate is an important part of, you know, wills and estates and managing managing an estate post death. So I guess it’s not as terrible as we think it is. It’s just inconvenient at times, I guess it can
William Hodgen
be and it is difficult sometimes to explain to a grieving family that why they have to wait nine months why they have to wait nine months, a year?
Bryan McCartney
Or why don’t have some such circumstances? Or longer
William Hodgen
or longer? Yeah, definitely. Yeah. So typically, if there’s outstanding tax obligations, or if the estate needs to lodge a return, something like that, because the the estate would need to apply for its own tax file number and go through an accountant. Yeah, well suitably qualified professionals. So that sort of stuff. But yeah, it is very tough to explain to a grieving family to say, This is why we charge what we charge. This is what the fees for probate, which we have no control over. That’s, that’s set by the government. So that is difficult to explain, saying, This is why we need to pay all of this, and this is protection it affords. And this is why the delay is what it is, and, and that sort of thing. But
Bryan McCartney
and I imagine that becomes especially challenging if there’s a particularly strained family dynamic, you know, if you’ve got siblings fighting, or that sort of stuff, where, you know, one just wants to get it over. And I imagine that would be a challenging or challenging part of it. Yeah, definitely.
William Hodgen
So I mean, people grieve in different ways, as you know, some people unfortunately, they were the people sometimes were the first people that that somebody talks to, it’s not often usually somebody’s had the time to get over the initial shock. But some people, you know, they jumped straight on, and they want to get the affair Fs sorted and started. As soon as possible, get the process kicked off. And they say, oh, you know, mom, or dad or, you know, brother, sister, whoever has just died, what’s involved? And then we say, we have to, really, we have to treat that sort of, of course, we have to get evidence, in most cases of that death having taken place. So that process takes a while to get the cause of death or even, you know, the official death certificate 10
Bryan McCartney
to 14 business. Yes. Right. Yeah, so it’s from the day of cremation or burial. Yeah, so it’s 10 to 14 births, deaths and marriages have 14 business days from the day of cremation, or what we call disposal are in Queensland, so cremation or burial to return a death certificate back to us.
William Hodgen
Okay. So typically, we have to say, Well, look, we can’t release because we have an obligation of confidentiality. Yeah, we have an obligation a positive obligation not to disclose to anybody confidential information. But when a person passes away, the executor effectively takes the shoes of the deceased person. So the confidentiality obligation effectively shifts to that person. So we can disclose things like well, which is the person’s property, so we can’t disclose information of that nature. Unless, you know, somebody authorises it or if they’re entitled under law?
Bryan McCartney
Yep. I have a question that you might know don’t want to answer but you will try anyway a bit of advice. We a question we often get asked by families is about payment of funeral expenses. So this is especially common with people who have power of attorney, they’ll say to us, I have power of attorney and I can access mom’s bank account. So I’ll just log in and pay your transfer. So what we usually suggest to the family is actually what you should do is advise the bank that mums passed away, they will then freeze the accounts, and you can present an invoice to them, and they’ll provide you with an appropriate payment. Is there a what is the rule around accessing a person’s finances? And specifically, people always ask us about whether I can pay with mom’s credit card after she’s passed? And we say no, that’s correct. Yes, that’s called fraud. And secondly, you know, how long they can be? Or how long is it until they have to actually advise the financial institutions that the person has passed,
William Hodgen
or they can do that straightaway? Typically, the financial institution will be very similar to us and say, well, we need evidence of death, we’ll freeze accounts, that sort of thing. I don’t know the timing, whether they do that straightaway or upon receipt of that evidence. But yes, typically, you can advise them straightaway, and then present funeral invoices and that sort of thing, those initial expenses, some banks will release an amount of funds for upfront probate costs and that sort of thing.
Bryan McCartney
Especially for people who might have like if they live in a nursing home, for example. So there’s still pharmacy bills, and there’s still potentially rent and electricity and firing and all of those things that have to be covered, whilst you know, a person’s estate is still being managed in those early stages. So that’s
William Hodgen
right. Yeah. And the executor may not be financially well off, they may be particularly impecunious. They may not have the funds to initially front the costs. And that can be stressful. And they then have to come up with a way to source those funds. And as I said, Some banks will release a portion of funds to pay for those initial costs. So typically, the legal fees associated with the whole thing and not payable up front, you’re not going to have to put you know, all of that money in trust. It’s typically those funds, illegal funds are paid from the estate assets.
Bryan McCartney
Right? Yeah. Okay. Last question. What is your best piece of advice for somebody thinking about planning their their will and power of attorney and advanced health directive and that sort of stuff to helping get their affairs in order? Let’s say, do
William Hodgen
it, you absolutely should do it, it does not matter if you are just fresh 18 or, you know, in your mid Middle Ages, or if you’re a person of advanced years, you should do it. Anybody needs a wheel? Everyone needs a wheel, you should absolutely do at the bare minimum that but you should definitely have an enduring power of attorney and advance health directive. Just in case the the unanticipated happens,
Bryan McCartney
right? Well, how can listeners get in contact with you if they want to book an appointment to come in? Get their affairs in order?
William Hodgen
Well, you can look at the show notes to have a look at our contact details. But you can phone and email in walk in as well. You can you can pop in just to say hi and talk about fees and that sort of thing and talk about the process. And yeah, we’re a friendly bunch. We’d like to, to help with those sorts of things. So
Bryan McCartney
and from my own experience definitely was easy. It was straightforward and super affordable as well. It wasn’t as expensive as I thought it would be to plan my affairs and get my affairs in order. So that’s great. Thank you. Awesome. Thanks for being with us today. Will, it’s been fantastic. And I’m sure you’ve helped answer a lot of questions. We might get you back for another episode on some different stuff, but we’ll talk about that. My pleasure. Thanks for saying thanks. You’ve been listening to ushering death. Don’t forget to like and subscribe, follow us on your favourite podcast app and visit us at usheringdeath.com.au