How a Wills and Estates Lawyer can help you….

Each Will should be as individual as the person making it. Whether you are looking to get a Will drafted or some advice in relation to contesting a Will, getting advice from a Wills and Estates lawyer is paramount.

Why would you make a Will?

When drafting your Will, you need to consider many personal factors such as:

• Dependents – Children and others in your care
• Your assets and to whom you want them to be left with
• Businesses & Succession Planning
• Relationships with Beneficiaries
• Blended Families
• Trusts
• Superannuation

We carefully draft each Will so that your Will can be relied upon after your death and minimise the potential for someone to contest your Will after your death.

Having clarity around the process will help your family and loved ones administer your Estate and deal with the process of probate. Poorly drafted Wills can lead to costly and time consuming estate claims and litigation.

A Will gives you the ability to direct who will receive your assets and possessions after you pass away. More importantly, it enables you to grant authority to one or more people to take control of your assets (the Executor) to deal with those assets in accordance with your wishes and pass them onto the nominated recipient. Find out more about executors

Your Will is one of the most important documents you will ever sign. Preparation of your Will by an experienced Wills and Estates lawyer is key. At PCL Lawyers, we will draft your Will so that it is valid and reflects your wishes. We make the process simple.

Why hire a Will lawyer?

Hiring a Will solicitor presents a number of benefits. For example, a lawyer can think about the situation from a litigators point of view – making a carefully drafted Will involves asking several questions, which most people just wouldn’t think to ask until prompted by our checklist. Further, if a Will is not correctly signed by the testator (Will maker) and both of the witnesses, it can be deemed void, resulting in unintended – and preventable – litigation. Hence, a Will lawyer’s involvement is always recommended, to make sure that every detail has been taken care of.

We check and provide the following advice:

• Legal Compliance – Is your Will property drafted; signed and witnessed?
• Beneficiaries – Are you thinking about the legal rights of beneficiaries or just what you would like them to have? Ignoring the legal rights of others can leave your loved ones behind with litigation and Wills disputes.
• Assets – Are you sure of how your assets are held and where?
• Clear Instructions – Having a Will correctly drafted will make it difficult for someone to contest later.
• Personalised Advice – Do you need a testamentary trust? Have your personal circumstances changed?
• Other Legal Advice – Is your Will open to a claim? We provide Wills Disputes & Litigation Advice and pursue a claim on your behalf.

Making a Will is not as straightforward as you may think. There are basic Wills, and then there are more complicated Wills involving family trusts and complex asset matrices. There are also testamentary trust Wills which can be very helpful in asset protection in certain circumstances, as these Wills set up a trust structure which only become active upon the death of the Will maker. Contact one of our experienced Wills Lawyers today to discuss your Estate on 1300 907 335 or complete the enquiry form on this page.

What can affect my Will?

Your Will should be reviewed around every five years to reflect your current circumstances. It is also important to speak to a Wills lawyer after any major change or event in your life. Certain life events can make your Will invalid or alter it significantly and you should have a new Will drafted in these instances.

Some of these life events are:

• Marriage – A Will made prior to a marriage is invalid.
• Separation – Separation from a spouse does not affect your Will.
• Divorce – This alters your Will and you should draft a new Will.
• De facto – De facto relationships can alter the validity of your Will if they are not provided for.
• Children – Children must be provided for in your Will.
• Death of a family member – You should review your Will and draft a new Will.

If you think that your Will may be invalid, or your personal circumstances have changed, you should contact a lawyer for advice and make sure that your loved ones are taken care of.

Can my Will be contested?

The law appreciates a person’s right to determine the distribution of their Estate, however there are grounds available to contest a Will.

Some of the following issues can lead to claims on estates:

• Poorly drafted terms;
• lack of provision for a spouse, children or other people (see Testators family maintenance claims);
• executing a Will when of unsound mind;
• executing a Will under pressure or undue influence from someone; and
• not executing a Will correctly.

When a Will is contested, this can be emotionally trying and complicated for those involved. Fees will often come from the Estate, reducing the pool of assets, and family relationships may deteriorate.  It is important to have a Will carefully considered and drafted by an Estates lawyer to ensure it is valid and to minimise the likelihood of your Will being contested.

We know that revising your Will is not an exciting task, but if there is a risk of a dispute, it can leave a poor legacy behind. Don’t be left wondering if your Will is valid, have it checked or changed.

Start the process today

What is a Will?

A Will is a written legal document which sets out how your Estate will be distributed after you die. Your Estate is the assets that you leave when you die.

What does a Will entail?

A Will usually contains:

• The nomination of a person, persons or organisation responsible for executing your wishes and distributing your Estate (executors)
• The nomination of alternative executors, should the Executor you nominate is unable or unwilling to look after your affairs after you die
• Details of the distribution of your Estate to your beneficiaries (the people who will receive your assets)
• Reasons for why you have not named someone as a beneficiary of your Estate if it would be expected that they receive a distribution
• The appointment of guardians if you have any minor children
• Funeral arrangements

Careful consideration is needed when deciding what to include in your Will. There may be things you should consider but are not aware of. An Estate lawyer can help you create a well thought-out estate plan and Will to help protect your assets and ensure your affairs are managed according to your wishes.

What is included in your Estate?

Your Estate is made up of assets that you own but also the things that you owe. There are some assets that are not included in your Estate and therefore cannot be controlled by your Will.

Mortgages and any outstanding debt will be paid off by assets left behind in the Estate before the Estate is distributed. How debt will be paid is determined by factors such as the type of debt and if there is enough cash in the Estate. This is the responsibility of the Executor. If there are not enough assets to repay your debts, your Estate may be declared bankrupt.

Assets that are owned solely by you will form part of your Estate after you pass away.

Assets that are owned by joint proprietors will not form part of your Estate and will not be governed by your Will. Instead, your interests in these assets will automatically pass to the surviving owner, known as ‘right of survivorship’.

However, if you own property as a ‘tenant-in-common’, for example you may own an unequal share of a property, surviving parties do not have a right of survivorship. Your interests of the property will form part of your Estate and can be distributed according to your Will.

Before you make a Will, it is important to understand what forms your Estate and can therefore be controlled by your Will. This can be a complicated process and most often requires an Estate lawyer to walk you through this process.

What happens if you don’t make a Will?

If you do not have a Will when you pass away, you will be declared “intestate”, with all of your assets being distributed pursuant to a set of rules under intestacy law. Therefore, you will have no control over the distribution of your Estate and it may be distributed contrary to your wishes.

Your Estate may be administered by the office of the Public Trustee (in exchange for a sizeable fee) or it may be up to one of your family members to take on the burden of administering your Estate.  This can be a laborious task of proving to the Supreme Court that there is no other more suitable person to administer your Estate. Read more about Letters of Administration. Not having a Will increases the legal, financial and emotional burden involved in administering your Estate.

Dying intestate can be emotionally stressful for your family, not to mention expensive. It can create disputes within the family, if a family member believes they are not being given what they are entitled to. Making a Will is therefore the responsible thing to do, to ensure that your loved ones are properly catered for after you pass away – and having the assistance of an expert Will solicitor ensures that it’s done correctly, giving you full peace of mind.

What is a Testamentary Trust?

Sometimes, a Will containing a testamentary trust is appropriate. A testamentary trust is a trust established under a Will which does not come into operation until after the person making the Will dies. The person making the Will, called a testator, will appoint a testamentary trustee/s in their Will. When the testator dies, their assets are passed to the Trustee to hold and administer the assets on behalf of and for the benefit of others, known as beneficiaries.

Like other trustees, the Testamentary Trustee has fiduciary duties to the beneficiaries, such as a duty of loyalty, they must abide by strict standards and adhere to the testator’s wishes stated in the Will. A Testamentary Trustee who breaches their duty may be personally liable for loss caused by the breach.

Testamentary trusts provide protection for a deceased’s assets because they belong to the Trust, not individuals. As a result, they are an effective estate planning tool and used by many to safeguard their assets for when they pass away.  Learn more about Succession Planning

What are the benefits of a Testamentary Trust?

Testamentary trusts are often used as part of succession planning.  This is due to the benefits of testamentary trusts.

Some benefits are:

• Protection of your assets from family law disputes – if there is family breakdown, such as divorce or separation, the Trust’s assets are not included in a property settlement.

Example: Tim and Amy have recently separated. Tim’s brother has passed away and Tim is named a beneficiary of the Testamentary Trust. The Family Court cannot make an order to distribute the property of the Trust because Tim does not own the property. 

• Protection of your assets from creditors – creditors cannot access distributions from a testamentary trust if a beneficiary has financial difficulties or becomes bankrupt. 

Example: Sarah owes money to a creditor. Her mother has recently passed away and she receives money from her mother’s Estate through a testamentary trust. The creditor will not be able to access the money received from her mother’s Estate for it is in fact owned by the Trust, not Sarah. 

• Protection of your assets by restricting beneficiaries – Testamentary trusts can protect the waste and misuse of a distribution by a young or irresponsible beneficiary.

• Tax benefits – Beneficiaries may need to pay tax on the income generated by a trust. The Trustee can split and apportion the income of the Trust among beneficiaries in a tax effective way. More income from the Trust may be allocated to a beneficiary with a low income compared to a beneficiary with a high income to minimise the tax burden on beneficiaries.

Example: James has an annual employment income of $80,000.  His income is subject to a high income tax rate. James’s wife works part time and has an annual employment income of $20,000. Her income is taxed at a lower income tax rate than James’s. The Trust generates an income of $20,000 per year. The Trustee can distribute a larger portion of the Trust’s income to James’s wife so that the trust’s income is taxed at a lower rate. This may also prevent James’s taxable income attracting a higher rate of tax if his taxable income is not increased due to income from the trust.  

What is Probate and Letters of Administration?

A grant of representation is a legal document that vests title to the deceased’s property to an executor or administrator. This gives authority to the Executor or Administrator to deal with the assets and liabilities of the deceased’s Estate.

There are two types of grant of representation:

• Probate; and
• Letters of Administration.

Probate is a grant issued by the Supreme Court. The grant of probate officially confirms the validity of the last Will of a deceased person and the appointment of executors. In most cases, a Will cannot be affected, and assets cannot be distributed to beneficiaries by the Executor/s until after probate has been granted. If the deceased’s Estate is very small, the Executor may not have to apply for a grant of probate.

Letters of Administration is the Court’s approval for someone (the Administrator) to deal with and administer the deceased’s Estate. An application for letters of administration must be made to the Supreme Court if the deceased does not have a valid Will or if no executor has been appointed.

There are two types of letters of administration:

• “Letters of administration” – if there is no valid Will; and
• “Letters of administration with the Will annexed” – if the Executor is unwilling or unable to apply for probate – e.g. the Executor has died, and a substitute executor is not named in the Will.

The deceased’s closest next of kin must apply for letters of administration to be appointed Administrator of the Estate. This is often the deceased’s spouse, domestic partner or one of their children. A grant of letters of administration will allow the Administrator to collect and distribute the deceased’s assets.

The process of applying for letters of administration can be complex. Before you can even begin applying for letters of administration, you must search for any Will that the deceased may have made and publish a notice of intended application. It is wise to get legal advice prior to commencing an application for a grant of letters of administration.

What is The Role of an Executor?

When making a Will you may appoint an executor or several executors to handle your Estate and execute your wishes after your death. Your Estate Lawyer can advise the Executor of their duties and obligations under the Law.

When choosing an executor, you can choose a beneficiary to be an executor. This is common if you have a sole beneficiary and you appoint them to be the sole executor as well. When selecting executors, you should consider the relationships each have with each other as this will ensure the Estate is handled smoothly.

Some of the Executors Duties Are:

• Making funeral Arrangements
• Dealing with the Estate and Assets and Financial Organisations including Management
• Dealing with the beneficiaries
• Obtaining Grant of Probate or Letters of Administration
• Resolving Disputes
• Acting impartially and in the best interests of the beneficiaries

The role of an executor is often demanding and carries legal risk. Choosing an executor is one of the most important decisions when drafting your Will. It is important to speak to an Estate lawyer to understand the role and responsibilities of the executor to help you make the right decision.

If you are an executor of an estate and need assistance and advice with administering an estate contact one of our lawyers today on 1300 907 335 or complete the enquiry form on this page.

Contact PCL Lawyers in Melbourne today

If you require the assistance of experienced professionals to draft your Will, assist in Probate or perhaps, you simply just need advice, contact one of our Will lawyers in Melbourne today. Our Wills solicitors are experienced in all aspects of Will drafting and we can ensure a thorough and quality service.

Call us on 1300 907 335 or contact us via our online enquiry form.

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