Wills & Estates
Whether your assets are modest or significant, you should have a will and estate plan to deal with life’s uncertainties and provide security and assurance for your loved ones. We can help you get your “affairs in order” no matter what stage of life you are at. We will consider your personal and financial circumstances and your family dynamics to prepare a tailored estate plan that suits your needs.
Preparing a Will
An effective estate plan generally starts with a valid will that clearly sets out your testamentary wishes. Your will should appoint one or more executors who will be responsible for administering your estate, and direct how your assets will be left or divided between your beneficiaries. You can also appoint guardians for minor children and provide directions for funeral arrangements. You will need to consider:
- Who you would like to manage your affairs after you die
- Who should receive your assets and how they should be distributed
- Who might be a suitable guardian to appoint if you were to die leaving children who were not old enough to look after themselves
- Whether you will need to appoint a trustee to manage assets to be held in trust for your children until they are adults
- Whether you and/or your current partner have children from a previous relationship and what provisions should be made for those children
- Whether there are certain individuals you wish to exclude as beneficiaries who may be eligible to make a claim on your estate
Choosing your Executor
Executors have many responsibilities such as arranging your funeral, identifying and protecting assets, collecting debts owed, claiming under insurance policies, obtaining probate, paying accounts, and distributing your assets according to your will.
If the will is disputed, your executor will be responsible for dealing with the dispute including giving instructions to legal representatives in the event of litigation being commenced.
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 appoint more than one executor (joint executors), or an alternate executor as a backup in case your first choice is unable to act in the role.
Administering a Deceased Estate
The administration of an estate is the process of dealing with and finalising the affairs of a deceased person. It involves a range of tasks including making funeral arrangements, identifying, collecting and protecting assets, and distributing the estate to the beneficiaries.
In most cases probate will be needed to authorise an executor appointed in a will to deal with the estate. Probate is a grant made by a court which recognises the validity of a deceased person’s will and provides authority for the executor to administer the estate.
The application for probate with supporting documents is filed with the Supreme Court. The original will must be produced, along with a certified copy of the death certificate, and an inventory of assets and liabilities. Notice must be given of the intention to apply for probate before the relevant application and affidavit is filed.
What happens if somebody dies without a Will?
When a person dies without a valid will (referred to as dying intestate), or a person appointed as an executor under a will is unable to fulfil that role, an interested person may apply to the Supreme Court for letters of administration. A grant of letters of administration allows the interested person, known as an administrator, to deal with the deceased’s estate in the same manner as an executor would. In practice, the applicant will usually be a spouse, partner, child, or other close relative of the deceased person. The estate will be administered according to the rules of intestacy which sets out a specific formula for the distribution of the person’s assets.
Executors and administrators have several legal responsibilities, and we can help you through the process, providing advice and guidance so you can effectively manage your role.
If you need assistance, contact one of our lawyers at [email protected] or call 02 9181 4777 for a no-obligation discussion and for expert legal advice.