Wills, Estates & Probate

We can help with all your estate planning and administration needs – whether you want to prepare a will, make a power of attorney, structure your affairs for greater asset protection, or are dealing with the estate of a loved one. Administering a deceased estate can be one of the more difficult challenges in life. We can help you navigate this process and can also assist if you have not been adequately provided for by a deceased family member or are an executor facing an estate dispute.

FAQs on estate planning and estate administration

What is a will?

A will is a formal written document directing how your assets should be distributed to your beneficiaries after you die. The will nominates one or more executors to deal with your affairs and finalise your estate. Your will can also appoint guardians for minor children and set out your wishes for funeral arrangements.

Why use a lawyer to prepare your will?

Certain legal formalities must be met to make a valid will. If the will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die. A lawyer can check that the legal formalities are met when preparing your will, structure your affairs to help protect assets and vulnerable beneficiaries, and flag issues that could lead to potential claims or estate disputes. We will ask about your personal, financial, and family situation to tailor a will and estate plan that provides the best possible solution for your circumstances.

Who should I choose as my executor?

It is common to appoint one or more trusted family members or friends as your executor/s however this is not always the case or may not be suitable in your circumstances. You should consider whether your proposed executor is:

  • willing to accept the role
  • capable of managing your estate in terms of their own health and capacity
  • suitable to manage your estate in terms of having sufficient time, experience, and the confidence to deal with your affairs in the manner you would like
  • able to act impartially, which is particularly important if you foresee potential disputes over your estate
  • likely to outlive you

You can consider appointing a second alternate executor as a backup in case your first choice is unable to act in the role. Alternatively, appointing joint executors to fulfil the role may be a more suitable option.

What is the role of an executor?

Executors have many responsibilities which typically include arranging your funeral, identifying and protecting assets, collecting debts owed, claiming under superannuation and insurance policies, applying for probate, paying accounts, and distributing your assets according to your will.

Sometimes, an executor will need to deal with issues that are outside their areas of expertise. For example, they may need to consider the correct order for paying debts, deal with conflict and disputes, or a testators’ family maintenance claim. We can help you through the legal process, providing advice and guidance so you can carry out your duties and administer the estate as smoothly and efficiently as possible.

What happens if I die without a Will?

Dying without a will also means that the next of kin will usually need to apply to the court for letters of administration before dealing with the estate. This can result in additional work and costs for the grieving family.

What is a testamentary trust?

A testamentary trust is a discretionary trust contained in a will that comes into effect when a testator dies. A trustee is appointed to manage the trust and distribute assets to beneficiaries in accordance with the rules outlined in the trust deed.

While trusts can be complex and there are ongoing costs involved, they can help protect assets or beneficiaries in a number of ways. For instance, if a person wants to leave gifts to young children or other vulnerable individuals, a testamentary trust can assist in ensuring that funds are used to benefit those people. In some cases, a testamentary trust can also help to protect assets from third parties, for example, if a beneficiary is at risk of bankruptcy or being sued.

What is Probate?

Probate is a grant, or orders, made by the Supreme Court authenticating a will and authorising the distribution of your assets in accordance with its terms. Probate is usually granted to the executor who then gathers all your assets and distributes them in accordance with your wishes.

Can I challenge a Will?

If you think you should have been included in someone’s will, you may be eligible to make a claim for a family provision order. Generally, the following people may be eligible to make a claim, however, a number of circumstances will be taken into consideration, which you should discuss with a lawyer:

  • current spouse or domestic partners of the deceased
  • children, stepchildren, and those treated as a natural child of the deceased
  • former spouses or domestic partners of the deceased, in certain circumstances
  • a registered caring partner of the deceased
  • grandchildren of the deceased, in certain circumstances
  • a spouse of a child of the deceased, in certain circumstances

In determining whether to make a family provision order, the court considers various factors, including:

  • The deceased’s Will, or other evidence of their intentions, including reasons why they have not included or provided further for a person bringing a claim.
  • The relationship between the deceased and the person bringing the claim.
  • The claimants financial position
  • Any obligations or responsibilities of the deceased to the person bringing the claim and to any other person who could bring a claim, and the beneficiaries of the estate.
  • The size of the estate and any liabilities of the estate.

Strict time limits apply when making a claim so if you wish to do so, or if you are the executor of an estate against which a claim has been made, we recommend obtaining urgent legal advice.

If you need assistance, contact one of our lawyers at [email protected] or call 03 5747 8251 for expert legal advice.