03 9305 5509

Wills & Estates

Whether you are looking to draft a will or make an estate plan, need assistance applying for probate or letters of administration, or think you’ve been unfairly left out of a will, our experienced lawyers can help.

What is a Will?

A Will is a written document that records a person’s wishes regarding the distribution of their assets after their death. Assets include personal effects, real property, shares, and other financial resources. In the will, a person or persons will be nominated as the executor/s. They will have many legal responsibilities including applying for probate, gathering and distributing your assets to your beneficiaries and finalising your affairs.

Your will should make your wishes clear to avoid confusion and conflict amongst your loved ones. It also needs to be legally valid.

While many wills may need only be simple, there is no one-size-fits-all approach, which is why we recommend having a professional guide you through the will and estate planning process. We will consider your family and financial circumstances and your nominated beneficiaries and flag potential issues that could trigger a dispute after you die. If necessary, we can put in place trust structures to help protect your assets and any vulnerable beneficiaries.

What happens if I die without a Will?

Without a will, you will have died intestate. Subject to the applicable legislation in your jurisdiction, only certain people will get a share of your estate. The legislation outlines a formula for the division of assets, depending on the circumstances of the deceased. Largely, the categories of people who may be entitled to receive property where a person dies intestate are as follows:

  • Partners of the deceased
  • Children of the deceased
  • Parents of the deceased
  • Siblings of the deceased
  • Grandparents of the deceased
  • Nieces and nephews of the deceased
  • Aunts and uncles of the deceased
  • Cousins, grand-nieces or nephews of the deceased

If you die intestate, your next of kin will usually need to apply to the court for letters of administration before being legally authorised to deal with your estate.

What is Probate?

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

Challenging a Will

If you think you should have been included in a Will, you may be eligible to make a claim for a family provision order subject to the Administration and Probate Act 1958. Section 90 of that Act says that the following people are eligible to make a claim:

  • 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 some circumstances, a spouse of a child of the deceased

In determining whether to make a family provision order, the court considers a number of factors. These include, but are not limited to:

  • The deceased’s will or other evidence of a deceased’s intentions including reasons why they have not included or provided further for the person bringing a claim.
  • The relationship between the deceased and the person bringing the claim.
  • 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.

Powers of Attorney and Medical Decision Makers

A power of attorney allows you to appoint a person (attorney) to act on your behalf in relation to your financial or personal matters, or both. A financial matter includes any matter that relates to your financial or property affairs.

You can appoint one or more people, together or separately, to act as your attorney. You can also place certain limits on your attorney’s powers and nominate when and in what circumstances, the power will operate.

An appointment of medical decision maker allows you to appoint a person to make decisions for you in relation to your medical treatment if you are unable to make those decisions yourself. Your medical decision maker’s authority to act on your behalf will only come into effect in the event that you do not have capacity to make decisions for yourself.

We can explain the different documents to you so you can make an informed decision as to which are right for your circumstances.

How can we help?

An effective estate plan usually requires more than preparing a valid will. We know the potential pitfalls and will ask the right questions to make sure that you have considered the inevitable and the unforeseen. We can advise as to whether you may benefit from including a testamentary trust and can plan your estate in a way to help protect your family and your assets. If you have lost a loved one, we can help you through the complex and emotional process of administering their estate.