Wills

Q: What happens if I don't have a will?

A: Without a current and valid will, there is no guarantee that your assets will be transferred on your death as you want. By leaving a will your wishes are known.

Without a will, the state government's order for distributing assets will apply. If you have no family as defined by that order, your assets could even go to the government.

Without a will, if you are married with children, your assets may be divided between your spouse and children in shares that may not suit you. If there are children, a surviving spouse is only entitled to the household chattels, a prescribed amount and 50% of the balance (subject to certain rights about the family home).

There is a complex set of rules that apply to a surviving defacto spouse that need to be considered separately. However, issues may arise that could have been avoided by leaving a valid will.

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Q: Why should I use a lawyer to prepare my will?

A: If you answer "Yes" to any of the following questions, a correctly worded will can do it for you. That is why you should use a lawyer to help you.

Does your will need to do any of the following:

Prevent your spouse from changing their will without reference to you and after your death, without reference to your children?
Assist in protecting your assets from a Family Court property order requiring your surviving spouse to transfer some of your property to your surviving spouse's new spouse?
Protect your assets from a Supreme Court claim by your surviving spouse's new spouse or the new spouse's children/dependants if they contest your surviving spouse's will?
Ensure that children your surviving spouse may have from a new relationship do not benefit from your assets?
Protect your assets if your surviving spouse becomes a bankrupt?
Give tax advantages to your surviving spouse and each child?
Give your surviving spouse and each child the option to access those tax advantages through a tax effective and flexible trust that comes into existence on your death?
Transfer control of your companies, trusts and other entities to your surviving spouse and eventually equally (or otherwise) to your children?
Protect assets given to a child where the child becomes a bankrupt?
Protect assets given to a child where the child is later divorced?
Protect assets given to child where that child suffers a disability?
Protect assets given to child where that child has a problem, such as being a spend thrift, drugs or gambling?
Make an allowance for capital gains tax that may result from leaving a gift to a charity or non resident child?
Make an allowance for capital gains tax that may result from leaving specific assets to nominated beneficiaries?
Protect your executor from a claim for inadvertently not having complied with your executor's investment obligations under the Trustee Act?
Leave your superannuation entitlements to the person you want to leave them to and possibly tax effectively to your spouse, minor children and inter dependents?
Align your life insurance policy beneficiaries with the gifts under your will?

The points that mention a spouse can equally apply to a defacto relationship.

Without a will, if you are married with children, the law provides that your assets will be divided between your spouse and children in shares that may not suit you. If there are children, a surviving spouse is only entitled to the household chattels, a prescribed amount and 50% of the balance (subject to certain rights about the home if the value of the deceased's interest in it is more than the prescribed amount).

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Q: Executor under a will - What are my duties?

A: As an executor under a will, you will be responsible for the administration of the estate of the deceased and for the distribution of their assets to the beneficiaries under their Will.

The duties of an executor can be quite demanding with duties including:

attending to funeral arrangements
identifying the assets and liabilities of the estate and whether or not the estate is solvent
if required, applying for and obtaining a Grant of Probate
preparing and executing the necessary documentation to access assets
paying debts, expenses and duties
preparing tax returns
protecting business interests
realising assets and transferring them to the beneficiaries in accordance with the Will
if required, the ongoing trusteeship of minor's trusts and life tenancies

If you are an executor under a Will and we act for you in applying for the grant of Probate and administering the estate, we will give to you a copy of our comprehensive brochure about your duties as an executor.

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Q: Probate - What is probate?

A: Before a person's assets can be distributed after their death, the executor may need to apply to the Supreme Court for a grant of Probate.

A grant of Probate is the court's approval of a person's Will as their last Will. Once it has been obtained, the deceased's assets can be distributed in accordance with it.

The Probate is used to access estate assets such as bank accounts and to sell shares and real estate.

If an estate consists of real estate it is only necessary to get Probate if the real estate is not held as joint tenants with another party. If the property is held as joint tenants, title in the property will pass to the surviving joint tenant/s without the need for Probate.

In a small estate where there is no real estate to deal with, the bank account funds are less that $20,000 (depending on the bank requirements) or share portfolios do not exceed $15,000 (again depending on individual requirements), it is generally not necessary for a grant of Probate to be obtained. The executor may however be required to sign indemnity forms with the banks, institutions etc confirming their right to deal with the assets.

An application for a grant of Probate is made up by an Affidavit of Executor, which sets out information about the executor/s, the deceased and the Will.

Annexed to the Affidavit are the death certificate, an inventory of assets and liabilities, an extract from a local newspaper showing the notice of a proposed application for a grant of Probate and the original Will.

When the executor is satisfied that the Affidavit is correct, the executor must sign the Affidavit and its annexures in the presence of a solicitor or a justice of the peace.

The Affidavit of Executor together with a summons and a filing fee is then lodged with the Probate Division of the Supreme Court. If the Court has any questions about the application, it will issue requisitions (questions), which are required to be answered before a Grant of Probate can issue.

The filing fee to the Supreme Court varies with the size of the estate from $0 for an estate less than $50,000 to $1,424 for an estate over $1m

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