Wills, Probate, Estate Planning & Family Provision Act Claims



INTRODUCTION


Estate Planning is not a luxury, but a necessity which many people ignore.  We cannot know when we might die, but we can ensure that should it be sooner than we think, our affairs are in order and our loved ones are spared further distress, uncertainty and hardship.  

WILLS

It is so important to have a current, valid Will.  Should you die without having made a Will, your estate is "intestate" and the way in which your assets are distributed is determined by State legislation and may not accord with your wishes or be the most appropriate and efficient way of dealing with your assets, the needs of your loved ones and other considerations such as taxation.  

The distribution of an intestate’s estate is governed by the Administration and Probate Act 1958.  The Act sets out a scheme of distribution which is determined by the relatives left by the deceased:-

  • If the deceased leaves a spouse or domestic partner and no children then the entire estate will go to the spouse or domestic partner. 
  • However, if the deceased leaves a spouse or domestic partner and children, then the estate is divided between the spouse/domestic partner and children in proportions set out in the legislation.
  • If there happens to be a spouse and a domestic partner, for example after the breakdown of a marriage but prior to a decree of divorce, yet more provisions dictate how the estate is to be shared between the spouse and domestic partner. 
  • If there is no spouse/domestic partner or children then the parents, siblings or remoter relatives of the deceased benefit from the estate, and if no living relative can be located, then the Government will receive the assets of the estate.

The person who will be authorised by the Court to take responsibility for the distribution of an intestate’s estate will generally be the person with the greatest entitlement to the assets of the estate. 

What are the advantages of having a Will?

Clearly, the statutory framework for the distribution of an intestate’s estate will not always accord with how you would wish your estate to be distributed.  Even if it does, there are many reasons why it is preferable to have a Will:-

  • You can choose who you wish to deal with the administration of your estate and the distribution of your assets.  This may be a trusted friend, professional adviser, relative or a combination. 
  • You can decide and set out how you wish your estate to be distributed.  There may be particular items which you wish to go to specified people.  You may wish your spouse to benefit from the whole of your estate, even though you have children.  You may wish to leave something to charity.
  • You can structure your estate in a way which can take care of a current spouse, while ensuring that children from a previous relationship will ultimately benefit from your estate.
  • Through the use of Testamentary Discretionary Trusts, you can enable your beneficiaries to take advantage of significant tax savings and asset protection advantages.

What is involved in making a Will?

A valid Will must be in writing, signed by the Testator in the presence of two witnesses who then also sign the document.

You will need to give thought to how you want your estate to be distributed and to whom you wish to entrust the management of your estate.

Choosing to have a lawyer experienced in the preparation of Wills and the administration of estates, means that you get good, sound advice about your own particular circumstances and the most appropriate way to maximise the benefits for your loved ones, and minimise the potential problems or hardships.

Can a Will be disputed?

Yes.  There are basically two types of challenge that can be brought against a Will.  The first is that the Will is not valid, for example due to a lack of capacity of the person making the Will, undue influence or other formal requirements not having been met.  The second is where a person for whom the deceased had responsibility to provide claims that the Will fails to make adequate provision for them.  The chances of a successful challenge will depend upon all the circumstances, but the likelihood of a challenge can be reduced if appropriate advice is sought and provided at the time of making a Will.

How often should a Will be reviewed?

Wills should always be reviewed in the following circumstances:-

  • Marriage or Divorce
  • De Facto relationship
  • Birth of children  

At MJS Law we can advise you in relation to all Wills and Estate Planning issues and can also offer home visits for eligible clients.

PROBATE

When someone dies leaving a valid Will, there are strict legal requirements that must be met before that Will can be admitted to probate so that the estate can be administered.  We are experienced in all aspects of the application process and can undertake this process on your behalf efficiently and without delay.  Where appropriate, we will liaise with accountants, stockbrokers, insurers and other professionals to ensure that matters progress as quickly and smoothly as possible.  Once Probate has been granted, we can assist with the administration of the estate, deal with beneficiary entitlements and help establish ongoing Trusts.

LETTERS OF ADMINISTRATION

In the some-what more complicated event that a valid will has not been left, we can assist in an application for Letters of Administration to the estate from the Supreme Court of Victoria. In these circumstances, there is legislation that details how an estate may be distributed and by whom (see above for a summary). The Supreme Court can appoint an Administrator to distribute the estate under the Administration and Probate Act 1958. 

TESTATORS FAMILY MAINTENANCE CLAIMS

As indicated above, a claim can be brought against an estate for provision (or additional provision) if a person for whom the Deceased may have had responsibility to provide is not provided for adequately under the Deceased's Will or Intestacy. 

At MJS Law we can:-

  • Consider and provide an assessment of the strength of a claim.
  • Represent a claimant in an application to the Supreme Court of Victoria for provision or further provision from a Deceased's estate.
  • Represent an executor of an estate where a claim is made against that estate.
  • Advise beneficiaries of an estate of the likely outcome of a claim against an estate in which they have an interest and advise in relation to alternative dispute resolution opportunities. 

FOREIGN ASSETS

More and more people now own assets outside Australia, especially those who have migrated here.  We can assist with arranging for foreign assets to be dealt with in accordance with the applicable laws and with the administration of those assets.

Similarly, more and more Australians live overseas, whilst still owning assets here.  We can assist in an application for the Re-seal of a foreign Grant of Representation to enable assets situated in Australia to be dealt with in accordance with the Will of an ex-patriate.

Arrange a consultation with an experienced solicitor.

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