Why should I have a Will?
- To ensure your family’s needs are met according to your wishes when you die and avoid leaving confusion behind.
- Apart from distributing your wealth and assets to family members, a Will can include a range of requests such as providing for children from a previous relationship, providing for children with special needs, excluding immediate family members, guardianship of your children, assets that do not form part of your estate (such as family trust assets and superannuation death benefits) and your charitable objectives.
- When leaving a Will you must decide who to appoint as your executor, who the beneficiaries of your assets are, how and when your assets will be distributed.
- If you die without a Will, therefore without an executor, your closest family member can administer your estate, or you can request the Public Trustee to administer your estate or request a solicitor administer your estate. It can take months for this process to be completed and there is no guarantee that your dependants will receive what you may have wanted.
When should you review or update a Will?
- Your Will should reflect your current situation and intentions.
- The following events are examples of when a Will may need updating:
– marriage, separation, divorce or entering into a new relationship.
– The birth or death of children, grandchildren or other close relatives or other changes in your family circumstances.
– significant changes to the value of your assets.
– substantial changes in the way you own assets such as the creation of a family trust or a self managed superannuation fund.
– if you enter a new business or change the structure of your current business.
– changes in the residency status of you or your intended beneficiaries.
– retirement from full time employment.
– significant changes to taxation, superannuation and social security laws which may impact upon your Will and estate.
How can I challenge a Will?
- Family members, spouses, partners and anyone who can show that they were financially dependent on the deceased may be able to challenge a Will.
- There are strict time deadlines so it is important to receive prompt legal advice from us if you are contemplating challenging a Will.
- Claims that relate to challenging a Will include family maintenance, lack of testamentary capacity, undue influence, breach of trust, power of attorney, guardianship and administration.
- If you have been appointed or named as executor of the estate and you receive a notice of claim in relation to the Will, it is also necessary to receive prompt legal advice.
How to administer an estate?
- An executor is responsible for protecting the assets of a deceased’s estate (which may include storing valuables, investing surplus funds and insuring property), dealing with any necessary administration (such as unpaid debts or incomplete business transactions) and distributing the estate according to the Will.
- The executor must notify government agencies and other institutions about the death so liabilities do not continue and any necessary income (such as pensions) is stopped.
- The executor must confirm all of the assets and liabilities of the estate which involves writing to financial institutions, government agencies, relevant companies, searching records (Land Titles Office) and preparing an inventory of household furniture and personal effects.
- Once all the necessary information has been obtained, the executor must apply for a Grant of Probate to administer the estate from the Supreme Court. This document legally authorises the executor to deal with all matters relating to the estate.
- When probate has been granted, the executor must lodge a final tax return, redeem bank accounts and investments, sell or transfer any real estate and motor vehicles and pay any liabilities.
- Once these matters have been finalised, the executor can distribute the estate to the beneficiaries as outlined in the Will.