Wills & Estates
Most people put off planning their estate as it is not pleasant to think about a time when your will or power of attorney will be needed.
But planning your estate is a gift that you can give to your loved ones and can bring peace of mind to you and your family.
Effective estate planning can also help to protect vulnerable beneficiaries, and in some cases, help manage the rates of tax payable by beneficiaries on their inheritance.
We can help with all your estate planning and administration needs – whether you need to draft a will or require assistance to finalise the affairs of a deceased loved one.
What is a Will?
A will is a formal written document that records a person’s wishes for the distribution of their assets after their death.
Assets include personal effects, real estate, shares, investments, and other financial assets.
A will also appoints one or more people as your executor/s, however, just because you nominate someone to be your executor does not mean they have to accept the role. For this reason, we recommend discussing your plans with your preferred executor/s before drafting your will.
Your executor is responsible for managing your affairs after you die, which generally includes things like arranging your funeral, identifying and protecting your assets, applying for probate (if necessary), dealing with banks, service providers and government bodies, distributing and transferring assets in accordance with the will and dealing with any disputes.
Why do I need a Will?
Without a will, you will die intestate, and your assets will be divided according to a prescribed formula set out in legislation which will depend on your circumstances. In other words, you do not have a say in who receives your assets, which may not reflect what you wish.
In Victoria, the Probate and Administration Act 1958 determines how assets will be distributed where a person dies intestate. Largely, the categories of people who may be entitled to receive property where a person dies intestate are the deceased person’s:
- nieces and nephews
- aunts and uncles
- cousins, grand-nieces or nephews
Dying intestate usually also means that somebody (like a close family member) will need to apply to the Supreme Court for letters of administration before dealing with and finalising your estate. In addition to the uncertainty caused by not having a will, the need to apply for letters of administration can make the process of winding up your estate more complex and expensive.
What is Probate?
Probate refers to the grant made by the Supreme Court of Victoria that validates a deceased person’s will and authorises an executor to distribute the assets in accordance with its provisions.
Probate requires completion of various documents for lodgement with the court. Probate may not be required in all cases. If you are the executor of the will of a deceased person, we can advise you with a grant of probate is necessary, or recommended, in your circumstances.
Challenging a Will
If you have been left out of someone’s will, you may be eligible to make a claim for a family provision order subject to the Administration and Probate Act 1958.
The following people are eligible to make a claim:
- a current spouse or domestic partner of the deceased.
- children, stepchildren, and those treated as a natural child of the deceased.
- former spouses or domestic partners of the deceased in certain circumstances.
- a registered caring partner of the deceased.
- grandchildren of the deceased.
- in some circumstances, a spouse of a child of the deceased.
In determining whether to make a family provision order, the court will consider several factors as outlined in the Act.
The reasons include, among other things:
- The deceased’s will, or other evidence of a deceased’s intentions, including reasons for why they have not included, or not provided further for a person bringing a claim.
- The relationship between the deceased and the person bringing the claim.
- Any obligations or responsibilities of the deceased to the person bringing the claim, any other person who could bring a claim and the beneficiaries of the estate.
- The size of the estate and any liabilities of the estate.