Wills & Probate
A Will sets out what you want to happen to your estate after you pass away. By the Will, you decide:
- The person(s) or organisation (called “executor”) who will manage your affairs and deal with your assets and liabilities after you’re gone, in accordance with the instructions you set out;
- How and to whom your estate will be distributed;
- Who will be the guardian for your children under 18 years old;
- Any other matters, such as specific wishes regarding how your remains should be dealt with, organ donation and charitable donations.
Having a valid will means your best opportunity to ensure that your hard earned money and accumulated assets will be distributed in the way that you want them to, minimise the administrative and cost burden on your loved ones, and give your loved ones the comfort that your wishes have been honoured.
Who can make a Will?
Anyone over 18 years old who is of sound mind and has legal capacity (that is, they understand what they are doing) can make a Will.
There are limited situations where a person under 18 can make a Will.
What types of property can you leave in a Will?
Any property which you own at the time of your death, including assets (houses, cars, money in the bank account, cash, investments), your belongings (jewellery, books, photos, paintings, other personal items), as well as your rights and powers such as the right to appoint the trustee of a family trust.
Your estate comprises of all such property left over after your funeral costs, administration expenses, tax and debts are paid.
Some assets do not pass to another person through a Will:
- Property, such as a house or land, that you own as a joint tenant;
- Assets from your superannuation or insurance fund – these are distributed to the beneficiary named by you in the superannuation insurance policy;
- Assets that are held in a family company or trusts. While you may have control over these assets through the company or trust, you are not actually the legal owner of these assets. Your Will can provide that your right relating to the control of the company or trust (for example, the right to appoint the trustee of the trust) will pass to a certain person.
It is important to get legal advice during your succession planning so that you have the certainty of knowing the arrangements you have in place for your property have been dealt with appropriately and validly ensuring that your estate is divided in the way which you intended.
Amending an existing Will or making a new Will
From time to time, there are life events that may necessitate changes to your estate plan documents, and it is important to change your existing Will or the make of a new Will. For example, your wishes regarding the distribution of your estate may change after you get married, enter into a new relationship, separation, divorce, have children/grandchildren, or if your loved ones have special needs, or you want to include charitable donations as part of your legacy.
If you do not update your Will with your new wishes then the executor will deal with the assets in accordance with your current Will, despite the fact that your wishes have changed. It is therefore important to keep your Will updated.
Grant of Probate/ Letter of Administration
While all the work required to manage and finalise a deceased’s estate can be done informally and without the need to involve the Courts, in many cases it is necessary to obtain a grant of probate or a letter of administration from the Supreme Court of the State where the deceased’s assets are located.
In Western Australia and Victoria, the State’s Supreme Court deals with all matters involving wills and probate law and the administration of deceased estates. Grant of probate/ letter of administration are legal documents issued by the Supreme Courts which enables the executor or administrator to deal with the deceased’s estate. They serve as the proof that the executor/ administrator has authority to collect the assets (such as money held in banks, shares, managed funds), pay the debts, and sell or transfer property in the estate.
Grant of Probate
After a person passes away leaving a valid Will that nominates a person as executor, that person may apply to the relevant State probate office where assets are located (the Probate Office of the Supreme Court of Victoria or the Probate Registry of the Supreme Court of Western Australia) for a Grant of Probate.
The Grant of Probate is especially important because it enables the executor to distribute the estate in accordance with the instructions in the Will. The executor will also need this Grant of Probate to deal with banks, financial institutions, share registry or land title registry.
Letter of Administration
If a person has died leaving a will but the will does not name an executor, or where the only executor nominated in the will is unable or unwilling to apply for a Grant of Probate, the Supreme Court may grant a Letter of Administration with the Will Annexed to a person, who is usually a beneficiary of the deceased’s estate, to administer the estate.
If the deceased does not have a valid Will
There are several situations when a person is considered as having died “intestate”:
- The person passes away without a leaving a Will;
- There is a Will, but it fails to deal with all of the property in the estate;
- The Will is invalid because it was not signed or witnessed according to law; or
- The person was not mentally capable of making a Will before death;
In these situations, the estate will then be dealt with according to the intestacy laws of the relevant State/ Territory considered as the place of residence of the deceased at the time of death. The deceased’s next of kin will have to deal with the administrative procedures and apply to the relevant probate office for a grant of Letters of Administration, so that they be authorised to administer the deceased’s estate and deal with the assets in the estate.
Generally, the intestacy rules provide that the estate will be distributed to the deceased’ spouse or children, or if there is no spouse or children, the deceased’ next closest living relatives. Each State and Territory has their own rules regarding who the “Next of Kin” are and the share of the estate that they will inherit.
Application of the intestacy rules could mean that your estate may not be distributed in a way that you had wished it to. For example, your estate can be distributed to “Next of Kin” being an estranged spouse, a spouse to whom you have separated but not yet legally divorced, or relatives who you hardly keep in contact with or do not like.
Please contact our lawyers in Perth and Melbourne if you would like to know more about or require assistance with estate planning, wills and probate or letters of administration matters.
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