Do you need to make a Will? Has a loved one recently passed away? Whether you are making a Will, acting as an executor, or are a beneficiary of an estate we can help you.
Making a Will
A Will is the legal document which details who should receive your assets (your beneficiaries) and who will have the responsibility of carrying out your wishes (your executor). Anyone over 18 years of age with legal capacity can make a Will. If you die without a valid Will you have died ‘intestate’ and your assets will be distributed in accordance with legislation, not your wishes.
The complexity of your Will is generally determined by your circumstances, family structure, assets, intended beneficiaries and any trusts or structures which you have in place, or wish to create. It is also important to regularly review your Will as events such as marriage, divorce, having a child, buying or selling a property, an unexpected windfall or inheritance can change how your Will operates.
Acting as an Executor of an Estate
Are you an executor of an estate? An executor deals with the deceased’s assets and liabilities. This can involve closing bank accounts, selling land, paying the deceased’s debts and funeral expenses and, in most instances, obtaining a Grant of Probate from the Supreme Court.
A Grant of Probate is a document issued by the Supreme Court which states that a Will is valid and authorises the executor to manage and distribute the estate assets. This process begins by publishing a notice that the executor intends to apply for probate so that any creditors or family members intending to make a claim against the estate can contact the executor. A series of documents, including the death certificate and inventory of the deceased’s property, are then lodged with the court. Once stamped by the court and returned, the executor may commence distributing the assets of the estate. A Grant of Probate may not be necessary in all circumstances and a lawyer will advise you whether a grant is needed or recommended.
If the deceased died without a Will, the family may need to apply for Letters of Administration. As in the case of Probate, the necessity to obtain Letters of Administration is often determined by the asset holder. Usually the next of kin, be it a spouse, domestic partner or child, makes the application to the Supreme Court.
Making a Claim from an Estate
Have you been left out of a Will? If you have been excluded from a Will, you may be eligible to make a claim on the deceased’s estate. You must show that there was moral obligation on the deceased to make adequate provision for you. Time limits and eligibility criteria apply for making a claim, so it is important to obtain legal advice promptly.
The executor of an estate has a duty to uphold the terms of the Will in the face of any claims or actions made against the estate. In instances where a claim is made against the estate by an eligible person, the executor of the estate must decide in the best interests of the beneficiaries. In doing so, the executor may find that a negotiated settlement is in fact, the best solution. However, if the claim cannot be settled outside of court, an executor must respond to the claim and provide evidence to the court in order to uphold the testamentary intentions of the deceased
Effective estate planning is important to alleviate some of the stress for our loved ones after we die, and to ensure that our hard-earned assets are left to those we intend to benefit. We assist clients with important estate planning decisions and will work with you to explain your options in simple terms and prepare your Will and other documents tailored to your circumstances. If you need any assistance, contact one of our lawyers at Seventh Street Legal, 158 Seventh Street, Mildura, Victoria, or call 03 5021 4276 for expert legal advice.