Our clients are at the centre of everything we do. We can help you prepare an effective Will that protects your beneficiaries and provides certainty for those you leave behind. If a deceased loved one has placed their trust in you to manage their affairs and ensure their last wishes are followed, we can guide you through the process of administering and finalising their estate. Likewise, we can help if you have lost somebody close who did not leave a valid Will.
What is a Will?
A Will is a legal document used to express your wishes about who receives your assets when you die. In your Will, you also appoint an executor who will be your legal representative and entrusted to follow the provisions of your Will and finalise your estate.
Anyone over 18 years of age should have a valid Will to ensure that their wishes are followed, and their assets are distributed as they would wish after they die.
What happens if I don’t have a Will?
Dying without leaving a valid Will is referred to as dying intestate. If you die intestate, your estate will be dealt with according to legislation. The laws of intestacy in each jurisdiction in Australia set out a prescribed formula for the distribution of your assets. This can result in unintended consequences, create uncertainty for your loved ones, and leave them with the additional burden, in many cases, of having to apply to the Supreme Court for letters of administration to allow them to deal with the estate. The process of having your assets distributed will likely take longer and be more costly which may cause your surviving spouse or family unnecessary financial hardship and stress. If you are in a de facto relationship your partner may be required to provide evidence that the relationship existed prior to being considered as a beneficiary of your estate.
If you die intestate and your only living relatives are more distant than cousins, your estate will pass to the government.
I have a Will – do I ever need to review it or update it?
Yes, we suggest you review your Will regularly to ensure the provisions remain valid and it continues to document your wishes. Changes in your life may create problems for others in interpreting your wishes or may automatically revoke your Will, or parts of it. You should specifically review your Will if:
- you marry or separate from your partner
- you have children
- your executor is no longer alive or capable of carrying out the role of an executor
- you have disposed of specific gifts left to beneficiaries, for example you have sold a property that has been named in the Will
- you acquire new assets and would like to make specific plans for them
- a beneficiary named in your Will has died
Storing your Will
Your Will should be kept in a secure, but easy to access location. Your original Will may be stored in our Safe Custody FREE of charge or you may store your Will in your own safe custody. No matter where you choose to store your Will, it is important to notify your executor of their appointment and let them know where your Will can be located. This will save time and eliminate stress for your family when your Will needs to be found.
Can I use a Do-It-Yourself Will Kit?
For a Will to be valid, there are strict legal requirements to be met regarding its execution and witnessing. Using correct legal terminology and phrasing is also essential to ensure that your intentions are clearly expressed – the smallest details can make a huge difference when it comes to interpreting a Will.
Our solicitors are highly qualified and will prepare your Will in accordance with your wishes and ensure it complies with all legal requirements. We will guide you through the process, ask the right questions and help you avoid the many pitfalls we see when people use a Do-It-Yourself Will Kit.
Can my Will be contested?
Having a Will enables you to express your testamentary wishes, however it does not eliminate the possibility of an eligible person who believes that they have been unfairly treated under your Will from contesting it. A family provision claim in New South Wales may succeed in circumstances where it can be shown, amongst other things, that an eligible person was not left with adequate provision by the deceased for their proper maintenance and support.
To minimise the potential for such a claim being made on your estate, we can discuss ways to make your reasons known why you have left a particular person out of your Will to give the court a sense of explanation when considering any potential family provision claim.
Probate and Estate Administration
What is Probate?
A grant of probate by the Supreme Court acknowledges the validity of a person’s Will and may be required before distributing a deceased person’s assets. The application seeking probate is usually made by the executor appointed in the Will. The executor will need to prepare and file a number of legal documents with the court. If the court raises requisitions regarding the application for probate, the executor will need to deal with these. Executors usually get help from an experienced estate solicitor to assist with the preparation and filing of the application for probate.
Who needs a Grant of Probate?
The necessity for probate generally depends on the size (value) of a deceased person’s estate, the type of assets held, and how those assets are held.
Probate may not be required if the deceased did not own any property or only had a small amount of money in their bank account. In such cases, the executor should contact the financial institution where the money is held to confirm their requirements to release the funds.
Probate may also not be required where a spouse or close family member has died leaving only assets that are jointly held. In such cases, we can provide guidance on the steps involved in having the assets transferred to the surviving joint tenant.
I have been appointed as an executor – what do I need to do?
If a close family member or friend has appointed you as executor of their Will that means you were the person they trusted to fulfil the role of distributing their assets, paying their debts and finalising their estate in accordance with the relevant laws. This can be a complex and confronting task however we can help you carry out your duties during this difficult time and will guide you through the process.
A family member or friend has died without a Will – what happens next?
When somebody dies without a valid Will, an application is required to be lodged with the Supreme Court to have an eligible relative granted permission to distribute the assets in accordance with the laws of intestacy. This is referred to as letters of administration. In such cases, surviving relatives will receive the assets held by the deceased according to a prescribed formula.
Elder Law, Powers of Attorney & Guardianship
We all want greater certainty for our futures, but how can we safeguard ourselves against changes we may not foresee? Down the track, if you lose the capacity to make day-to-day or vital decisions affecting your life, you may need someone to manage things on your behalf.
To best protect your interests, talk to us about how to put a safeguard in place now that removes the uncertainty around your financial and health/lifestyle decisions in the future.