A Will is a written document that sets out your requests as to what happens to your property (your ‘estate’) after you die. It gives clear instructions for the person or organisation distributing your property (your ‘executor’) 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 make and understand their decisions. Our Wills and Estate Planning lawyers have years of experience in Wills and Estate Law, so 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. Melbourne Lawyers & Mediators can assist you with
- Making a valid Will
- Changing your Will
- Helping you if someone dies without a Will (intestate)
- Challenging a Will
- Making an application for Probate
- Part IV Applications
- Administration of the Estate.
What is an Executor of a Will?
When you write your Will, you’ll be advised to appoint an Executor. An Executor is legally responsible for handling a person’s estate (their money, property and possessions) when they die and for carrying out the instructions in their Will.
What does the Executor of a Will in Victoria do?
The executor of a will has different obligations and responsibilities assigned to them. The main responsibilities of an executor include:
- Make sure all property owned by the deceased is secured as soon as possible after the death
- Collect all assets and money due to the deceased (including property)
- Pay any outstanding taxes and debts (out of the estate)
- Distribute the estate to the beneficiaries listed in the will
- Arrange the funeral, (if the Will contains specific instructions for them to do so).
Key duties of an Executor
The tasks most associated with being an executor include:
- Registering the death
- Getting copies of the Will
- Arranging the funeral
- Valuing the estate
- Taking responsibility for property and post
- Applying for probate
- Sorting out finances
- Distributing the estate
- Dealing with and organising the application (where required).
What is a Power 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
- 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 lose capacity. As a result, the Victorian Civil and Administrative Tribunal may be asked to appoint an administrator or guardian to help you.
A Power of Attorney can be either a financial Power of Attorney or a medical decision maker, or both. You may choose the same person to be both, or choose a different person for each role. You can also choose whether you wish to appoint an enduring or non-enduring POA, depending on your personal circumstances.
The Benefits of a Power of Attorney
If you lose mental capacity (the ability to make independent, sound decisions), unless you’ve already completed a Power of Attorney form, your loved ones will need to apply through court to become ‘a deputy’. This can be a long, confusing, and expensive process.
By nominating a trusted friend or relative before you lose capacity, you can ensure they work together to make decisions on your behalf.
Here at Melbourne Lawyers & Mediators, our experienced team often hear “Oh, that doesn’t apply to us, we’re too young and healthy!” This is a common misunderstanding. Accidents happen without warning, and you can only create a Power of Attorney when you have the proper capacity. Once you’ve lost capacity, it’s too late.
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
- Any other person the court thinks fit.
If you need help with any matters relating to Grant of Probates, Letters of Administration, or to draft a Will or Power of Attorney (Financial or Medical), our experienced wills and probate lawyers in Melbourne can help.
Why Choose Melbourne Lawyers and Mediators?
Melbourne Lawyers & Mediators is a small, yet vibrant, progressive and culturally sensitive law firm based in Pascoe Vale. We have extensive experience in Wills, Estates and Powers of Attorney. Our team would love to answer any questions you may have about your estate, so for more information or to arrange a consultation, contact us today.