Melbourne Wills & Estate Planning Solicitors
One of the most important things you can do for your loved ones is to write a Will, setting out your clear wishes as to how your Estate is to be divided after your death. Our Wills and Estate planning lawyers in Melbourne can assist with strategies and a tailored plan to help protect your wealth and your family. Our Wills and Estate Planning lawyers can also assist you with finalising the Estate of a loved one.
Making a Will
Your Will sets out how you want your property to be distributed after your death. You may wish to include a detailed list of individual items, but many people simply leave their estate divided into percentages. For instance, if you are married with children, you may decide to leave your entire estate to your spouse (if they survive you), or in equal shares to your children (if your spouse dies before you).
One of the most important functions of your Will is to nominate someone (or several people) to act as your executor. The executor of your Estate has a primary responsibility to carry out your wishes outlined in your Will and to distribute the assets of the Estate. The executor has clearly defined duties and obligations including to manage, protect and maximise the value of the assets of the Estate (including any tax debts).
Further considerations include the appointment of a guardian for the care of any children, funeral directions, and arrangements for the financial support of any dependants. For instance, you can set up a testamentary trust in your Will for the future care of a disabled child or family member.
How often should you review your Will?
A major milestone or change in your personal or financial circumstances might mean you need to consider reviewing and possibly updating your Will. Such events include:
- getting married or starting a new domestic relationship;
- separation or divorce;
- the birth of a child;
- the passing of a beneficiary or executor named in your Will;
- selling or purchasing major assets including real estate;
- starting or investing in a business venture;
- receiving an inheritance; or
- a change in your health circumstances.
While your Will may already be drafted to contemplate some of these events, our Wills and Estate Planning lawyers in Melbourne will identify whether changes are needed to reflect your new circumstances.
If you die without a valid Will, you have died “intestate”. In that case, you do not have an executor.
Instead, someone close to you may apply to the Supreme Court of Victoria for Letters of Administration to allow them to act as your administrator. In that case, you will have no say in how your assets are distributed. Instead, your administrator must follow a set of rules (set out in legislation) about how to divide your Estate, even though this may be contrary to your preferences.
Family Provision Claims
Unfortunately, even if you have a carefully made a valid Will, the distribution of the assets of the Estate may be subject to challenge. When someone is left out of a Will or feels that they did not receive a fair share, and they are an “eligible” person according to the relevant legislation and can apply to the Supreme Court of Victoria to contest the Will.
If you are concerned that your Will may be contested (e.g. in the event you choose to leave a child or spouse out of your Will), you should speak to our lawyers about your options. There are often steps that you can take now to prevent conflicts after your death.
Do you need a Lawyer to prepare your Will?
Your Will is a formal, legal document, and it needs to be made according to certain rules. For instance, it must be signed and dated, and validly witnessed. Your Will should also be stored very carefully, as any marks or damage to the document can cause problems later. Something as simple as a staple mark can bring the validity of the Will into question, as it may suggest that there were pages attached that are now missing.
We strongly recommend that you engage our Wills and Estate Planning lawyers in Melbourne to help you prepare your Will.
Our Wills and Estate planning lawyers will ensure that your Will is valid and will also help structure and maximise your estate to achieve its full potential. We will consider your individual circumstances, family structure, financial position, and raise issues such as taxation and superannuation for you to consider. Our Wills and Estate planning lawyers will also consider the steps required to minimise the potential for disputes to arise after you die.
Deceased Estates, Estate Administration and Probate
After your death, the administration of your Estate will be typically carried out by the executor/s you appoint in your Will, or an administrator (appointed by the court) if you die intestate.
Before administering an Estate, it is often necessary to obtain a Grant of Probate from the Supreme Court of Victoria. Probate “proves” the Will of the deceased person and most importantly, authorises the executor to deal with the assets of the Estate and distribute them according to the Will. A family member will usually need to apply to the Supreme Court of Victoria for Letters of Administration before an intestate Estate can be finalised.
Sometimes, executors and administrators need to deal with issues that are outside their areas of expertise. In addition to liaising with various third parties like banks, service providers, superannuation trustees and agents, they may also need to consider the order of payment of debts, or deal with an Estate dispute or testators’ family maintenance claim. Our Melbourne Wills and Estate planning lawyers will help you through the legal process, providing advice and guidance so that you can carry out your duties and administer the Estate as smoothly and efficiently as possible.
Powers of Attorney
When preparing a Will, it is also important for you to consider whether you wish to prepare and execute Powers of Attorney. There are two types of Powers of Attorney: an Enduring Power of Attorney (financial and/or personal matters) and a Medical Treatment Decision Maker form (medical matters).
Powers of Attorney give another trusted person or persons, the power to act on your behalf with regard to your finances, personal matters (e.g. where you live and other day-to-day decisions) or your medical matters. This can be very useful in situations where you may not have the capacity or not available to make an important financial decision, or where you do not have the capacity to give consent to a medical procedure.
You can decide when your Power of Attorney comes into operation. You may want your appointed Attorneys to be given immediate authority to act on your behalf. Alternatively, you may wish to impose conditions on their ability to act on your behalf. It is common for the Powers of Attorney to come into effect when the appointor has lost legal capacity.
Appointment of Administrators or Guardians (VCAT)
If your loved one does not have valid Powers of Attorney, we can assist you with applying for a VCAT Order to appoint you as an Administrator (financial matters) and/or as a Guardian (medical/personal matters). This may be a necessity when dealing with third parties such as banks, hospitals, or retirement/aged care facilities. Alternatively, it may just give you the peace of mind as you assist your loved one with making important life decisions, knowing that you have the legal authority to do so.
Speak to a Melbourne Wills & Estate Planning Lawyers Today
We advise all of our Family Law clients to consider preparing or updating their Will and Powers of Attorney, to accurately reflect their wishes following a separation and/or Divorce.