Wills and Probate
Wills and Estates
Last Will and Testament
A Last Will and Testament, or more commonly referred as a “Will”, is a declaration in writing by a person outlining who they would like to inherit their assets after they die (“the beneficiary”). A Will also specifies who you would like to distribute your estate to your beneficiaries on your behalf (an “executor”).
There is no legal obligation to make a Will.
If you do not own real estate you may think you have no need to make a Will. However, there may be substantial entitlements that are payable to you after your death. You will need a Will if you would like to specify who will benefit from those entitlements.
Your Will can also specify who you would like to look after your children after you pass away.
If you already have a Will, we recommend that you should review your Will every one to two years to ensure that it still applies in the appropriate manner given any changes in circumstances. Such circumstances could include if your family situation changes, if a person named in your Will changes their name or if an executor or beneficiary dies.
If required, our solicitors are able to assist you to make a variation to your Will to take these changes into account.
Our solicitors charge a fixed price for the drafting of a simple Will. Once drafted, we can also hold your Will in a secure place for no additional fee.
Before your assets can be distributed to your beneficiaries, your Executor is not able to deal with the person’s estate without first applying to the Probate office at the Supreme Court for a Grant of Probate of the Will.
Our solicitors are able to advise you whether a Grant of Probate is needed and we will assist you with preparing the documents required to lodge the Application for Probate.
We will also liaise with other involved parties, and are able to contact banks, employees, superannuation funds and beneficiaries on you behalf. We will assist you in winding up the Estate including transferring property and closing bank accounts.
Letters of Administration
If your spouse or defacto partner dies without leaving a Will, or you are a direct family member or a friend of the deceased person, then you can apply to the Supreme Court to become the Administrator of their estate.
Such an application is called a “Grant of Letters of Administration”. If a person dies without leaving a Will, then without this Grant there is no authority for you to distribute their estate. Prior to the Grant being made, the person’s estate vests in the State Trustees Office.
A person who dies without a Will (or dies “intestate”) will have their assets distributed in accordance with statutory schemes. Our solicitors are able to explain such schemes to you and assist with preparing the documents required to lodge the application for Letters of Administration.
As with Probate matters, we will also liaise with other involved parties, and are able to contact banks, employees, superannuation funds and beneficiaries on you behalf. We will assist you in winding up the Estate including transferring property and closing bank accounts.
Family Maintenance Claims
With any Will distribution or Estate, there is a possibility that an application may be made to the Supreme Court to challenge the Will. Such an application could be made for a number of reasons, for example if it is alleged that the Will was made under duress or that the Willmaker was too ill to make a valid Will.
The most common claim arises when a person claims that they were entitled to more from the deceased’s estate than what they received under the Will, and when a claim is made the Willmaker had a responsibility to support them even after their death.
Other claims can include where a sibling, child, grandchild or significant other has dedicated a substantial amount of his or her time caring for the deceased relative.
Those persons can apply to the Supreme Court pursuant to the Testator’s Family Maintenance provisions of Part 4 of the Administration and Probate Act (Vic.) for an order by the Court to change the Will of the deceased so that adequate provision are made for them.
Our solicitors can assist to apply for such orders or defend any actions brought against an Estate whether you are the beneficiary or the Executor of the deceased’s Will.