If you haven’t finalised your Will & Estate Planning, today is the day you stop leaving it to chance.
‘What is a will and why do I need one?’
‘Someone close to me has passed away without leaving a will and I don’t know what to do…’
‘Someone close to me passed away leaving a will which does not make adequate provision for me and I don’t know what to do…’
These are common questions and queries that our Wills and Estates team are often asked. At Melbourne Legal, we strive to be there for our clients to provide them with the advice and assistance they need, particularly during the difficult time after having lost a loved one.
In order to assist with this process, it is our common practise to recommend that our clients ensure that they have a will in place so that their loved ones can feel secure that their affairs are in order.
Who can make a Will?
A will can be made by a person who is over the age of 18 and has the testamentary capacity to execute a will.
What is a will?
A will is a written document which sets out your final wishes and instructions in respect of the distribution of your personal and real property after you die.
You may also express directions in your will relating to other matters, including but not limited to:
- how to deal with your remains (i.e. burial or cremation);
- organ donation; and/or
- the appointment of guardians of minors.
You must also set out in your will who you wish to appoint as your Executor/s, who will carry out the wishes, directions, and instructions you have provided for in your will.
The role of an Executor
The executor/s you appoint in your will effectively ‘step into your shoes’ after your death to carry out your wishes, directions and instructions as set out in your will.
This is why it is important to appoint an executor that you can trust and who is already aware of your personal and financial affairs.
Any person who acts in their capacity as an executor has several duties, such as:
- locating the will;
- making arrangements for the funeral;
- protecting the assets of the estate by:
- ensuring that all assets are properly insured;
- protecting business interests;
- collecting valuables and income; and/or
- keeping surplus funds invested;
- applying to the Supreme Court of Victoria for the grant of Probate;
- distributing the estate in accordance with the will; and
- commencing or defending legal action on behalf of the estate.
In the event that a Will-maker has failed to appoint an executor, an application would need to be made to the Court, who would usually appoint an administrator to administer the estate. This could be a beneficiary of the will who would be entitled to the largest portion of the estate or an independent third party.
An administrator has the same responsibilities as an executor.
Who inherits the estate?
If you die without a will (which is known as ‘intestacy’ or dying ‘intestate’) or your will is not valid, then an application for the grant of Letters of Administration will need to be made to the Supreme Court of Victoria.
In most instances, the application for the grant of Letters of Administration are made by the next of kin of a deceased person.
From 1 November 2017, changes were made to the Administration and Probate Act 1958 (Vic) [the Act] and applied to people who died intestate. Such changes included the following:
- If a person dies and leaves behind a partner, their estate shall pass solely to their partner;
- If a person dies intestate leaving a partner and children from a previous relationship, then some of the estate may also pass to those children.
However, this of course depends on a number of circumstances (i.e. different rules would apply if the deceased person had more than one partner).
In the event that a deceased person dies intestate and has no partner or children then the estate shall pass first to their:
- Then to their siblings;
- Then to their grandparents;
- Then to their uncles/aunts;
- Then to their cousins.
The estate does not pass to the government unless a deceased person has no living relatives.
Claims against an estate for further or proper provision
If a person close to you passes away and you believe that they have failed to make adequate provision for you in their will, you may be eligible to make a testator’s family maintenance claim under Part IV of the Act. These claims are also commonly known as ‘Part IV claims’ and they must be made within 6 months from the date that Probate is granted by the Supreme Court of Victoria.
Potential claimants must be an ‘eligible person’ as defined under the Act which includes but is not limited to the following categories of people:
- Spouse or domestic partner of the deceased at the time of their death;
- Child of the deceased; and/or
- Stepchild of the deceased.
The list of eligible claimants is more extensive, and you may contact our Estate Litigation team to discuss further if you think that you fall within the meaning of an ‘eligible person’.
If you think that the will left by the Deceased person was made whilst they did not have the testamentary capacity to make their will, or they were influenced to make their will by another person. You may also make application to challenge the will under the Act before Probate is granted by the Supreme Court of Victoria.
In circumstances where the deceased person dies intestate, the Act sets out a statutory formula to determine how their estate is to be distributed.
In either situation, the Courts may make orders to alter the terms of a will or vary the statutory formula so that provision or further provision can be made for a person.
Our team at Melbourne Legal has extensive experience and knowledge in respect of Wills & Estate matters. For a limited time take advantage of our FREE 20min confidential consultation offer to discuss your situation and work out an action plan to protect your interests. Call 1300 739 361 or click here.