Making a Will and planning your estate are important tasks if you want to save your loved ones from additional stress and uncertainty when you die. We can help you prepare a valid Will and estate planning documents that are tailored to your needs and make the most of your hard-earned assets.

If you are an executor and/or administering an estate, we can provide the necessary advice and guidance needed to carry out your legal responsibilities and to finalise the estate.

What is a Will?

A Will is a written legal document recording what you want done with your property and assets after you die. Your Will nominates who will be responsible for distributing your property and managing your estate (your executor) and directs who should receive your assets (your beneficiaries).

If you do not have a Will when you die, you will have died intestate. If this happens your assets will be distributed according to a statutory formula as detailed in legislation relevant to your jurisdiction. It is quite possible that this formula will not reflect the way you really wanted your estate distributed.

Having a valid Will helps to ensure that your estate is administered the way you wish. Involving a lawyer to prepare your Will can also help structure and maximise your estate to achieve its full potential. We consider your individual circumstances and important issues like taxation and superannuation. We will also consider your family circumstances and take steps, if necessary, to minimise the potential for disputes to arise after you die.

Enduring powers of attorney

An enduring power of attorney is a legal document that appoints somebody to make certain personal and financial decisions on your behalf if you lose capacity to make those decisions yourself. You should only choose somebody you trust to act as your attorney, as they will be making important decisions on your behalf which must be made in your interests. You can appoint more than one attorney and you can specify that the attorney may make decisions only about certain matters.

After a person dies, someone needs to look after their property and affairs and administer their estate. An executor is the person appointed under a Will to do this. An administrator has a similar role but is appointed by the court through letters of administration when a person dies intestate (without a Will), or an appointed executor is unable to act in that capacity.

Executors and administrators have significant legal responsibilities and must protect themselves from personal liability. The issue of liability is particularly relevant with complex estates or when disputes arise. Executors may need to consider matters outside their areas of expertise such as the tax implications on the sale or transfer of assets, the order of payment of debts, or the impact of a family provision claim. We can help you through the legal process, providing guidance to ensure the estate is administered as smoothly and effectively as possible, while ensuring your duties as the deceased’s legal representative are upheld.

An executor may need to apply for probate in the Supreme Court before administering an estate. The granting of probate ‘proves’ the Will of the deceased and authorises the executor to deal with the assets.

The requirement to obtain probate depends on the size of the estate, the type of assets and how they are held. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.

A grant of letters of administration is required when a person dies intestate. On application, the court will appoint an administrator, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

If you need assistance, contact [email protected] or call 03 9505 4999 for expert legal advice.