Wills and probate

It is important to obtain a will to ensure that your wishes are complied with after you pass away. If you don’t have a will this may result in risks to the management and distribution of your assets. It may also result in family members being put at risk of not having a family home to live in.

Usually a will needs to designate an executor or executors. The executor manages the deceased estate and instructs a lawyer to obtain probate so assets may be released and distributed to family members or whoever is provided for in the will.

A will also needs to give assets to particular people, the beneficiaries. Often a standard will provides for the assets to go to the surviving spouse and then the children. In this case we often draft mutual wills for both spouses so that each party has certainty on the outcome after their death.

However, a will can provide for gifts to go to anyone. You may want to provide some money gifts to children, nephews, nieces and close family friends.

In particular you should obtain a will for the following reasons:

• If you divorce a will is no longer valid. You may also be in the process of separating where property is already being dealt with under family law proceedings.
• If you don’t have a will the intestacy provisions of the Administration and Probate Act provides your deceased estate will be distributed to family members according to a set formula. This could result in your spouse having to sell the family home if it is over a certain value and give the remainder to the children.
• A will allows you to elect executors to manage the deceased estate. If you do not have a will a trustee company may be appointed to manage the estate and charge significant fees from the estate.
• A will can allow you to make provision for people and family members who have disabilities with a disability trust. This can give you peace of mind that family members will be cared for after your death.
• A will can allow you to protect assets for family members after your death with trusts.
• You may have children from separate relationships. We call this a blended family. If you do not have a will the statutory formulae may result in your assets being distributed differently to what you intended.
• You can suggest guardians to care for your children after your death.
• You may have gifted property to family members prior to your death and wish this to be considered in the will.
• Although wills may be contested, if you don’t have a will a court will have no way of knowing what your intentions were when considering competing claims from family members.
• You may have personal wishes in relation to the funeral and other matters that will not be recorded.
• You may want assets not normally included in the will to be part of the estate. For example, Superannuation is usually distributed according to a binding death nomination. You can elect the representative of the deceased estate to receive the money and distribute according to your will.
• The will can provide powers to your chosen executors and advisers to deal with the assets in the most tax effective manner.
• You can insert tax effective clauses to permit a family member to take the family home at market value and pay other beneficiaries without having to pay stamp duty.
• You may wish to exclude family members because they are estranged.

If a family member has lost mental capacity it may be possible for a family member or guardian to apply to the court to make a will.

This may occur in limited circumstances where for example a beneficiary or person entitled to receive property has committed a crime including fraud or there are other compelling circumstances.

Call us for advice.

If a family member is ill in a hospital or at home and requires a will then we can attend family homes or the hospital to obtain instructions and draft a will.

It may be necessary to have medical evidence to satisfy the requirement that the will maker(testator) has capacity to make a will and sign legal documents.

Financial and Medical Powers of Attorney are important legal documents that give the person appointed under the deed legal authority to deal with financial, personal and medical matters while you are alive. We can also provide guardianship deeds.

For example:

• If you are unwell or lose capacity the document will give a trusted family member power to manage finances and look after your welfare.
• You may travel and have a limited power of attorney that authorises people to sign important legal documents on your behalf and attend to important financial transactions.
• The documents are relevant if a person applies for guardianship. It may prevent an administrator being appointed to manage your finances if you have no capacity due to medical issues.
• Powers of attorney can provide limited powers to do things on your behalf or unlimited powers to do anything on your behalf.
• The documents gives you legal authority to make important financial, personal and medical decisions for the benefit of family members.

We often work together with your financial planners and accountants to draft documents and manage your affairs in accordance with your estate plan.

We also provide advice and strategies for asset protection.

For example:

• Advice on superannuation including self-managed super funds. Drafting binding death nominations, varying trust deeds, advice and solicitor’s certificates on self-managed superfund loans purchasing property.
• Setting up testamentary trusts and disability testamentary trusts.
• Retirement village contract advice.
• Loan agreements to family members.
• Granny Flat agreements. Where you assist family members buy a property and build a flat on the property to live on.
• Setting up trusts and varying trusts.
• Changing property ownership structures for asset protection purposes.
• Child Support Trusts.
• Family Law Settlements including binding child support agreements, pre-nuptial agreements and superannuation splitting agreements.
• Business strategies for asset protection and succession planning.

If a family member dies then it is necessary to obtain probate from the probate office at the Supreme Court. If there is no will then you can file an application for letters of administration from the supreme court. Both documents give a person (usually family members) legal authority to deal with assets including property, shares, savings in the bank and so on and distribute them according to the will or intestacy rules. If you do not have an original will or have documents with wishes for estates then those wishes may still be acted upon with a court order and application to the supreme court.

We can assist in winding up the estate. Winding up the estate can also be complicated and may involve paying tax.

Probate Application process and documents required:

• Affidavit of executors annexing will, other form of document purporting to be a will or declaring no will;
• Affidavit of assets and liabilities.
• Originating court application from court.
• Advertisement to court advising intention to make court application.
• Original death certificate.
• Original Will.
• Supporting documents relating to assets and liabilities of the deceased.
• Drafted Probate and order to be stamped by the court.

All court applications are completed on a fixed price basis. No hourly billing applies.

If you believe that the will is not valid or wish to contest the will for any experience then we can help.

Common court applications include:

1. Claiming a will is invalid;
2. Contesting a will. This could include arguing you are left out of the will.
3. Seeking a court order to remove a trustee/Executor.

Invalid Wills.

A will may be invalid for many reasons including that the testator (will maker) had no mental capacity to make a will when it was drafted, the will maker was under duress or it may be fraudulent.

It is important to obtain legal advice. These matters are expensive to run and require medical evidence.

Contesting a Will.

• Under succession law if you seek to challenge a will it is commonly called a family provision claim. In these cases, a person files a court application arguing that they were not adequately provided for under a will.
• The legal test the courts apply in these cases is whether a wise and just testator had a moral obligation to provide proper and adequate support for the person applying for the order.
• The court must also look at the will and consider the freedom of a testator to provide for people in the deceased estate as he or she sees fit.
• If the court decides that there was a moral obligation to provide for the person seeking the court order then it will be a matter of looking at the will, the size of the estate, everybody’s financial circumstances and deciding what should have been provided in the circumstances.
• Applicants have 6 months from the date probate was granted to make an application.
• From 1^st January 2015 the laws in Victoria relating to challenging wills have changed dramatically. Claims are made under Part 4 of the Administration and Probate Act (VIC) 1958. Amendments to Part 4 restrict the eligible people who can apply for a family provision claim. They include de facto partners, spouses, , step children, grandchildren and people who were dependant on the deceased and part of the household, registered caring partners, former spouse or de facto partners in limited circumstances relating to family law matters.

If you have a potential claim contact us for a free consultation.

Executors have legal obligations to act in the best interests of the beneficiaries of a deceased estate. They also have a duty to account to beneficiaries. It may also be the case they are not capable of managing the deceased estate or have a conflict of interest.

You may have a claim to remove the executor if you can establish that they are breaching these duties or not doing the job properly . For example, they may have made an application or letters of administration at court and excluded eligible family members. Alternatively, they may be taking too long to administer the estate or otherwise acting in a way that suggests they are not acting in the best interests of beneficiaries.

Contact us for a free consultation.

Disclaimer: The Contents of this website are not legal advice. Every case is different and the law is complex. If you have any questions of otherwise require legal advice contact us directly for an obligation free consultation.