The content on this site is information only and is not legal advice. If you need legal advice please contact us.
Making a Will is the best way to ensure your property is dealt with according to your instructions after you die. However, Wills have strict legal requirements. For example, how they’re signed, witnessed, and what you’re allowed to include. These factors can affect how a Court may interpret your Will. There are also other considerations about providing for those people who depend on you. For these reasons, it’s a good idea to get legal advice if you want a Will, especially if your arrangements are complicated.
A Will is a legal document, in writing, which gives specific instructions about how you want your property distributed after you die (who inherits your property). Property includes:
You can also give other instructions in your Will, for example, instructions about organ donation, guardians for your children and funeral arrangements.
Other useful terms:
It’s not compulsory to have a Will, but often it’s a good idea.
A valid Will can give you control over which people or organisations receive your property (your estate) after you die. You can make specific gifts (for example, you can leave your diamond ring to a particular person).
If you’re wondering whether you need a Will, the answer depends on:
For example, some people may have businesses, investments, foreign real estate, and trust funds to consider. Others may have almost no assets.
The biggest question to ask yourself is whether you want to control how your estate is distributed after your death. If you wish to maintain control, or if your estate is complex, you may need a Will. If you’re not concerned and your estate is simple, you may decide not to have a Will.
The best way to work out whether to make a Will is to speak to a lawyer. Contact us to make an appointment for advice about your situation.
To learn more about what happens to your estate if you don’t make a Will, see What happens if I die without a Will?
If you have engaged a lawyer to draft your Will, you will need to provide some essential information. For example:
It’s essential to follow the steps carefully to make a legally valid will. If any step is overlooked, or not carried out properly, the Will may be invalid, which puts at risk your wishes and requirements.
You must have both legal capacity and mental capacity to make a Will. This means that you are legally and mentally able to make decisions about your life.
You have legal capacity to make a Will if you are aged 18 years or older.
You must also have mental capacity to make a Will. That is, you understand what it means to make a Will, what you’re including (and excluding) in your Will, and the consequences of those decisions.
If you’re uncertain whether you’re eligible to make a legal will, contact us to make an appointment for advice about your situation.
In certain circumstances, a Court may authorise a minor person to make a will. A minor is someone under the age of 18 years. One example of this is if a minor person gets married.
In rare circumstances, a Court may make a Will for a person if they don’t have capacity to make it for themselves. This is a delicate and complicated legal process. If you’re involved in this type of situation, you will need legal advice as soon as possible.
Your Will must be in writing. Often, Wills are typed legal documents. If drafted by a lawyer, they follow a specific format and use specific language. It helps a Court to confirm that the Will is valid.
While a Will can be handwritten, there are many potential issues with handwritten wills, including:
We recommend that you use a lawyer to create your Will, to ensure it complies with legal requirements and to reduce uncertainty.
You must sign and date your Will in the presence of two adult witnesses. The witnesses also sign the document. The process for signing a Will includes the following steps:
It’s common to make mistakes when signing (or executing) a will. To avoid this, we recommend that you see a private lawyer to draft your Will and to organise its execution.
For more information, see the Law Institute of Victoria’s Wills and Estates website page.
While most of your property can be distributed under a Will, there are some exceptions. For example:
If you’re uncertain about any property that you’re planning to leave in your Will, seek legal advice.
An executor is responsible for:
You can name (appoint) a person in your Will to be your executor.
Before you appoint an executor, you need to consider who would be suitable. An executor can be a family member or friend. Most importantly, your executor must be trustworthy, honest and careful.
If you know someone who you’d like to appoint as executor, it’s a good idea to speak to them before you make your Will, to make sure they are happy to take on the role. If they agree, all you need to do is name them as executor in your Will (using their full name and address).
Sometimes, an executor may be unable or unwilling to act as executor. You can appoint an alternative executor, just in case this happens.
If you’re appointed as an executor in someone else’s Will, you must:
As an executor, you must act in the best interests of the estate, and the beneficiaries. This includes managing and protecting the estate’s assets, and paying any bills and debts until they’re distributed to the beneficiaries under the Will.
You will also need to maintain detailed records about how you have spent any money belonging to the estate (for example, accountant’s fees, lawyer’s fees, or expenses associated with selling real estate).
In some circumstances, an executor can be paid a commission payment for performing executor’s duties. It can be written into the Will, made by agreement of all the beneficiaries, or ordered by the Supreme Court.
If the beneficiaries believe you’re not adequately performing your executor duties, they can apply to the Supreme Court to have you removed as executor, and a new executor appointed.
Beneficiaries or potential beneficiaries have six-months to challenge a Will, from the date of the grant of probate. As the executor, you shouldn’t distribute the estate until at least six months after probate, in case of a challenge. If you’ve already distributed the estate, you may be personally responsible for the value of the distributed estate if there’s a challenge within the six months.
For more information, see A Guide for executors, a publication by the Legal Practitioners’ Liability Committee.
If your Will doesn’t appoint an executor, the Supreme Court can appoint someone to carry out executor’s duties. The person is known as an administrator.
In these situations, the administrator may be one of the beneficiaries.
The administrator is often the person who is likely to inherit the biggest share of the estate. This type of situation is known as Letters of Administration with the Will annexed.
However, if there’s no Will, or no valid Will, a Court won’t make an Order for Letters of Administration. For more information about these circumstances, see What happens to my estate if I die without a Will?
The most effective way to change your Will is to make a new Will. You can instruct your lawyer to draft a new Will. It should have a clause which cancels (revokes) all of your previous Wills.
Another way is to make a codicil, which is an additional document. It changes, explains or cancels part of your existing Will and should also be drafted by a lawyer. One of the issues with codicils is that there may be difficulties with interpretation in how they affect the existing Will. There’s also a greater risk that the codicil is lost.
When deciding whether to grant probate, a Court may be more careful when dealing with a codicil because these issues may increase the chance of fraud.
If you’re considering making a codicil, you should seek legal advice.
You should update you will every time you have a significant change in your circumstances. For example:
It’s a good idea to check your Will at least once a year to make sure it continues to reflect your wishes.
When you die without a will, the law says that you have died intestate. Special laws – known as intestacy laws – apply to intestate estates. Because there is no will, you don’t have a say in who gets your estate. Instead, your estate is divided according to intestacy laws.
If your Will is otherwise invalid, for example, if it wasn’t properly signed or witnessed, or the Court decides someone else forced you to make it in a certain way, the Court may have to decide how your estate is distributed.
If you die without a Will, someone close to you (often your most immediate family member, for example, a spouse, parent or child) can apply to the Supreme Court for Letters of Administration. This Order is similar to a grant of probate. The Letters of Administration permit an administrator to deal with the estate in a similar way to how an executor would deal with an estate.
If there’s no next of kin, or no one applies for Letters of Administration, any assets of the estate may be frozen, meaning that no one will have the legal authority to access, sell, or transfer them.
The intestacy laws set out an order of priority for who may inherit your estate. If you have no surviving partner, the laws in this area are complex, and you should seek legal advice if you have any questions about who may inherit your estate if you don’t have a valid Will.
If you’re in a de facto relationship and you die intestate, your de facto partner can only inherit your estate if:
Yes. Challenging a will is also known as contesting a will. Anyone who claims that you had an obligation to provide for them in your Will (for example, a child, parent, another close relative, a carer in a registered caring relationship, or a member of your household) can challenge.
Reasons why a person may challenge a Will include:
In these situations, anyone challenging your Will may make a Testator’s Family Maintenance (TFM) claim in the Supreme Court. They can claim a share, or a larger share, of your estate. They must claim within six months of the grant of probate.
A TFM claim is a claim against your estate. Your executor is responsible for handling the claim on behalf of your estate and beneficiaries. If the parties can’t settle the claim, the matter may go to trial, in which the Supreme Court will consider the evidence and hear witness testimonies. It’s a time-consuming and expensive process. Often, legal fees for both sides are paid by your estate, which means that there’s ultimately less for your beneficiaries to inherit.
A way of avoiding this type of claim is to get legal advice when making your Will to make sure you’ve provided for everyone to whom you have a duty, or to ensure you have good reasons for not providing for some people.
Other reasons why someone may challenge a Will include:
In these circumstances, they may ask a Court to declare that all of the Will, or part of it, is invalid. If the whole Will is declared invalid, then the terms of the previous Will (if there is a previous Will) will apply. If there is no previous Will, the intestacy laws will apply.
For more information, see Victoria Legal Aid’s website page, Challenging a Will.
Usually, marriage cancels (revokes) a Will. In other words, if you have a Will and then you get married, your Will is cancelled; it no longer has any legal effect.
The exception to this is to make sure the Will says that you’re marrying a specific person. For example,
“I make this Will in contemplation of my marriage to [name].”
We recommend that you make a new Will when you marry, to avoid this type of problem.
It’s difficult to say how long it will take for you to receive your inheritance. There are many things which may affect timing, including:
For smaller, straightforward estates with no legal issues, it can take a year or more before the executor is in a position to distribute the estate.
If you’re concerned about whether an executor is acting as quickly as they could or whether they are acting in the best interests of the estate, you should seek legal advice as soon as possible.
If you find yourself in this situation, the first thing to do is to find out what’s in your parent’s Will. If you’re a beneficiary, you are entitled to have a copy of the Will.
Depending on what the Will says, you may need urgent legal advice. If there wasn’t a Will, you will also need legal advice to work out whether you should apply to become administrator of the estate.
As a child of the deceased, you may have grounds to bring a Testator’s Family Maintenance claim, depending on what you’re entitled to under the Will.
But it may be many months before a Will gets to this point. If you’re an interested party (for example, a beneficiary), you may need a copy of the Will sooner.
Before the grant of probate, you can ask the executor for a copy of the Will if:
There’s no law against using a do-it-yourself kit to make your Will. However, there are many significant risks which you should consider before deciding to proceed.
Most people who use Will kits believe they’re simple, quick, and a much cheaper way to make a Will when compared with using a private lawyer. However, the difficulties with Will kits may not become obvious until after you’ve died. They may end up costing your estate tens of thousands of dollars.
Many DIY Will kits allow you to fill in the blanks with details about what parts of your estate you want to give away, and to whom. But issues may arise because:
Any of these errors could lead to a Court deciding that the Will is invalid (in part or in whole). If the Supreme Court intervenes, either because there’s an issue about interpretation, or because the Will is invalid, legal costs will increase significantly. Costs are usually taken from your estate, meaning that there will be less for your beneficiaries once all the issues are resolved.
The bottom line is that you may have saved a few hundred dollars with a DIY Will, but it may ultimately cost your estate thousands of dollars.
Also known as a grant of probate, probate is an essential part of distributing an estate. It’s an Order from the Supreme Court which confirms that:
The grant of probate allows the executor to wind up the estate, which may include selling assets and paying off debts, and then distributing the estate according to the Will.
To get a grant of probate, you must first advertise that you intend to make a probate application, at least 14 days before you apply. The advertisement appears on the Supreme Court website.
After 15 days, you can apply to the Supreme Court. You need to provide various documents with your application because you need to show proof that:
The required documents include:
You will also need to file affidavits detailing what you knew about:
Affidavits are important legal documents. They are sworn under oath, in the presence of a lawyer (or someone else who is allowed to witness affidavits). They are evidence that you provide to the Court.
The Court must examine the Will carefully and check all documents. If it’s satisfied that all legal requirements are met, it will make an Order for a grant of probate. As an executor, you can use the Order as proof that you have permission to deal with the Will-maker’s property and affairs. For example, you can show it to banks, accountants, real estate agents, utility companies and any other organisation or person as proof of your authority.
Sometimes, the Court rejects a probate application because of various issues, including:
If your application for a grant of probate is rejected, you will need legal advice as soon as possible to work through the issues.
We recommend that all executors seek legal help in the probate process. It’s a highly technical area, and the Court treats every irregularity seriously, no matter how minor. If it rejects your probate application, you need to start the process again, which will cause delays in distributing the estate, and will add to the costs.
For more information, see:
A small estate is valued at or below a particular amount, which is specified on the Supreme Court website. The amount is usually somewhere between $100,000 and $150,000.
For small estates, the executor (or administrator, if there is no valid Will) can ask for a small claims officer to prepare and file the probate (or administration) application. The benefits of this service are:
This service includes preparing the application, the application fee and publishing the online advertisement.
We can give you advice about Wills and refer you to a private lawyer for help.
Last modified on December 2nd, 2020 at 11:42 am
The content on this site is information only and is not legal advice. If you need legal advice please contact us.