A Will is a written document that sets out what you want to happen to your property (your ‘estate’) after you die. It gives instructions for the person or organisation distributing your property about how this is to happen.
A Will can be made by anyone aged over 18, as long as they have the mental capacity to understand what they are doing.
Our professional Wills lawyers have years of experience in Wills and Estate Law, so you can be confident in knowing that we can help you record your final wishes and how you would like them to be carried out.
We can help you no matter how straightforward or complicated your estate is.
Our lawyers can also provide advice on the following:
- Making a valid Will;
- Changing your Will;
- What happens if someone dies without a Will;
- Challenging a Will;
- Making an application for Probate;
- Part IV Applications; and
- Administration of the Estate.
Powers of Attorney
Powers of attorney are legal documents that allow you to choose who will make decisions about financial and personal matters, if you are not able to make these decisions yourself.
At some time in your life you may be faced with changes – such as an accident or illness – that might take away your capacity to make your own decisions about things like:
- where you live;
- how you spend your money; or
- how your health care and medical treatment are managed.
If you don’t have a Power of Attorney, you may not be able to choose who should make decisions on your behalf which could lead to conflict over who should take charge of the decision-making process if you are unable to do this yourself. As a result, the Victorian Civil and Administrative Tribunal may be asked to appoint an administrator or guardian to help you.
Please feel free to contact us about our Wills and Power of Attorney packages.
Probate is a critical legal step required before a person’s estate can be administered and distributed to the beneficiaries. It is a legal document issued by the Supreme Court that certifies that a will is valid and can be acted upon.
A ‘Grant of Probate’ is important because without it, an executor does not have authority to administer the estate. Further, a deceased person cannot hold bank accounts, shares, real property, cash, or superannuation. Therefore, probate is the important process of concluding the affairs of the deceased person.
How to obtain a Grant of Probate?
The executor named in the last Will must apply to the Probate Office of the Supreme Court. The Application includes filing with the court documents such as an Originating Motion, Affidavit, Advertisement and Inventory of Assets and Liabilities. If their application is approved, the court will order a ‘Grant of Probate’ to the executor. Management of the deceased’s assets will then be safely transferred to the executor.
Issues that may arise when applying for Probate
Applying for Probate may become a difficult process when the deceased person’s Will is contested. It may be contested on grounds that the testator did not have capacity to make the Will at the time, or there is a lack of valid execution, or perhaps the testator was under undue influence at the time of executing their Will. In these circumstances, it is best to seek legal advice.
What if there is no Will?
If a person passes away without a valid Will, validation of their estate and benefactors is completed by applying for a ‘Letter of Administration’. The court needs to approve the most appropriate person to administer the estate. The application is typically completed by the next of kin, or if there is no next of kin willing or able to act, the State Trustees may make the application.
The court usually grants a ‘Letter of Administration’ to:
- the husband or wife;
- one or more children;
- a Trustee & Guardian; or
- any other person the court thinks fit.
If you need assistance with any matters relating to Grant of Probates, Letters of Administration, or to draft a Will, our experienced team at Melbourne Lawyers & Mediators can help.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.