Wills | Probate

Wills and probate are essential aspects of estate planning and administration in Australia. A will is a legal document that outlines how a person’s assets and estate are to be distributed after their death, while probate is the legal process of validating the will and administering the estate. The laws governing wills and probate are primarily state based, so the processes can vary slightly across Australian states and territories.

Wills

In Australia, a will is a legal document that outlines how a person’s assets and affairs should be managed and distributed after their death. The laws governing wills vary slightly between States and Territories, but there are many similarities across the country.

The property that you leave when you die is known as your estate. Your Will can also include your wishes about things such as who you want to care for your children after you die and your burial wishes. If you don’t have a Will, your estate may not go to the people you want it to.

Key Elements of a Will

The following are the key elements of a Will:

• Testator is the person making the Will is called the testator.
• Beneficiaries are individuals or organizations that will receive the testator’s assets according to the terms specified in the Will.
• Executor is the person appointed to carry out the instructions of the Will and are responsible for managing the estate, paying debts and distributing assets to beneficiaries.
• Assets and Liabilities should outline what assets like real estate, bank accounts, personal belongings will be distributed and to whom. It may also address liabilities like debts and loans that need to be settled.

Importance of Will

A will is important in Australia for several reasons, each of which contributes to ensuring that a person’s wishes are respected and that their assets and affairs are managed according to their intentions after their death.

The following are the key factors for importance of Will:

• Control Over Asset Distribution as a Will allows an individual (the testator) to specify how their assets including property, money and personal belongings will be distributed after their death.
• Avoiding Intestacy as if someone dies without a valid Will, their estate is distributed according to the intestacy laws of their State or Territory.
• Appointing Executors as a Will allows the testator to appoint one or more executors who will be responsible for managing their estate.
• Appoint a Guardian as a Will covers for your minor children and outline any wishes for how they should be brought up.
• Providing for Loved Ones as a Will can be used to provide for family members, friends or charitable organizations.
• Minimizing Family Disputes as a Will clearly outlines asset distribution and appointing executors can help minimize potential disputes among family members and beneficiaries.
• Tax Planning and Asset Protection as a Will can include provisions that assist with tax planning and asset protection strategies.
• Addressing Specific Wishes as a Will can address specific wishes regarding funeral arrangements, the care of pets or dependents, organ donation or other personal preferences.
• Facilitating the Estate Administration Process as a clear and legally valid Will can streamline the estate administration process.
• Updating Life Circumstances like having a Will provides a framework that can be updated as life circumstances change, such as marriage, divorce, the birth of children, or the acquisition of new assets.

Requirements of a Will

In order for a Will to be formally valid, it must have the following features:

• In writing
• Intended to be your Will
• Signed by you on each page in front of at least two witnesses
• Dated at the time of signing

Invalid Will invalid

A Will is invalid if it is made by a person who does not:

• Make the Will freely and voluntarily
• Have testamentary capacity
• Intend to make a Will

Die Without Will

If you die without a current Will, the law will decide what happens to your estate. This may mean that your estate is not distributed in the way that you wish. The Court will appoint an administrator to distribute your estate following legal rules known as the rules of intestacy.

Inclusion in Will

You can include:

• Assets in your name only
• Assets that you own as a tenant in common
• Assets such as houses, cars, money, shares, cash, savings and investments
• Rights and powers such as the right to appoint the trustee of a family trust
• Specific belongings such as jewellery, books, photos, social media details
• How you would like your remains to be dealt with
• Organ donation
• Who you would like to act as guardians of your children (although the Court makes the final decision)

Cannot Include in Will

You cannot include:

• Assets held in trusts
• Your share of assets owned as a joint tenant
• Annuities you are receiving like regular payments of income
• Regular compensation or support payments
• Superannuation in some cases

Will Not Updated

If your circumstances change, there may be gaps in your Will. If that happens the rules of intestacy will apply, which means any assets not dealt with by your Will are distributed according to the law which may be different from what you want.

Review of Will

You should review your Will if:

• Your family relationships change like marriage, separation, divorce, remarriage and children become adults
• Your family members change like deaths, births of children or grandchildren, adoption and stepchildren
• Your family assets change like purchase or sale of real estate, changes in your level of wealth
• Your executors or guardians die or become unavailable
• Anything happens to a beneficiary like injury, death or bankruptcy

Challenged Will

When you make a Will, you expect your wishes to be carried out. However, any Will can be challenged either because there is an allegation that the Will is not valid like for example “it was made when you lacked testamentary capacity, or it was made because of undue influence from someone or because a dependant has not been properly provided for.”

Probate

Probate in Australia is the legal process through which a deceased person’s will is validated and recognized by the courts. It involves the administration of the deceased’s estate, ensuring that the deceased’s wishes, as expressed in their will, are carried out according to the law. The probate process varies slightly between states and territories, but the general principles are similar.

When a person dies leaving assets in Victoria, usually the executor of a person’s Will or the closest next of kin (where there is no Will) has to finalise the deceased’s affairs.

Generally, this involves:

• Collecting or gathering all of the deceased’s assets
• Paying any debts
• Distributing the assets to the persons entitled

Sometimes these tasks can be done informally, without requiring anything from the Court. In some instances, however, it may be necessary to obtain a grant of probate or letters of administration (collectively referred to as grants of representation) before these duties can be completed.

Probate or Letters of Administration

Grants of probate and letters of administration are collectively referred to as grants of representation. A grant of representation gives a person the legal right to administer the estate of a deceased person.

Probate is a legal document that certifies that a Will is valid and can be acted upon. Letters of administration are issued where the deceased has left no valid Will.

If a person dies leaving assets in Victoria, the executor or next of kin of the deceased person may need to apply for a grant of probate or administration to deal with the estate left behind.

There are a few ways to obtain a grant. You may either:

• Instruct a solicitor to act on your behalf
• Authorise a trustee company to act as executor or administrator
• Make the application as a self-represented person (without a solicitor)
• If eligible, instruct the Probate Office small estates optional service to prepare your application

Probate Office

The Probate Office deals with all applications for grants of probate and administration and maintains a register of all grants issued by the Court and all wills deposited with the Court for safekeeping.

The Probate Office can give you general information about making an application for probate or administration, but we cannot advise you on how to administer an estate.

The Supreme Court of Victoria has exclusive jurisdiction to make orders in relation to the:

• Validity of wills
• Appointment of an executor or administrator of a deceased estate
• Administration of deceased estates.