Wills & Estates
Whether you are looking to draft a Will to dispose of your assets after you are gone, need assistance in seeking Probate Orders or Letters of Administration, or you think you’ve been unfairly left out of a loved one’s Will, our experienced lawyers can assist you.
What is a Will?
A Will is a formal written document which records a person’s wishes for the distribution of their assets after their death. Assets include personal effects, real property, shares and other financial assets.
In the Will, a person or persons will be nominated as the executor. The executor is responsible for applying for Probate, gathering and distributing your assets in accordance with your wishes after your death. They are duty bound to follow your wishes. Just because you have nominated someone to be your executor does not mean they have to accept the role. For this reason, we recommend discussing this with your preferred executor before drafting your Will.
Do I need a Will?
Without a Will, you will have died intestate, and your assets will be disposed of according to law. A distribution of your assets according to the rules of intestacy may not reflect your real wishes, and somebody will need to apply for Letters of Administration with the court before your estate can be distributed and finalised.
Powers of Attorney
When preparing a Will, we strongly recommend that you consider putting in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you are unable to make decisions about your finances, your medical treatment or living arrangements, then a person or persons who you trust to make these decisions can do so unhindered.
After discussing your circumstances and wishes, we can recommend the most appropriate document or documents to meet your needs.
What is Probate?
Probate refers to the grant, or orders, made by the Supreme Court of Victoria that ‘proves’ the Will of a deceased person and enables the executor to gather and distribute your assets as directed in the Will.
Distribution subject to intestacy
In Victoria, the Probate and Administration Act 1958 determines how assets will be distributed if a person dies intestate. Letters of Administration can also be issued if a Will is invalid, or if a Will doesn’t deal with the entirety of a deceased’s property.
Subject to the legislation, only certain people get a share where a person dies intestate. The legislation outlines a formula for division of the assets, depending on the circumstances of the deceased. Largely, the categories of people who may be entitled to receive property where a person dies intestate are as follows:
- Partners of the deceased
- Children of the deceased
- Parents of the deceased
- Siblings of the deceased
- Grandparents of the deceased
- Nieces and nephews of the deceased
- Aunts and uncles of the deceased
- Cousins, grand-nieces or nephews of the deceased
Challenging a Will
If you think you should have been included in a loved one’s Will, you may be eligible to make a claim for a family provision order subject to the Administration and Probate Act 1958. Section 90 of that Act says that the following people are eligible to make a claim:
- Current spouse or domestic partners of the deceased
- Children, step-children, and those treated as a natural child of the deceased
- Former spouses or domestic partners of the deceased in certain circumstances
- 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 a number of factors, as outlined in section 91A of 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
Planning for your family’s future after you’re gone is an important legal task. Taking the time now to make an effective legally binding Will can save your family not only stress but money in what will undoubtedly be a difficult time for them.
Our experienced team can help with all your estate planning and administration needs, from preparing a Will that maximises the inheritance for your family; ensuring your financial and health matters can be managed by those you trust if you are incapacitated; applying for Probate or Letters of Administration and distributing the estate of a loved one; to claiming or defending a claim under family provision legislation.
If you need assistance, contact one of our lawyers at lawyers@elliottstafford.com.au or call 03 9486 7555 for a no-obligation discussion and for expert legal advice.