Wills & Estates
New Wills
Whether you have entered a new relationship or ended an existing relationship, started a family or bought property, you should strongly consider making a Will. Although the terms of a Will can be challenged in certain circumstances, this is the best way to ensure you have as much control as possible over what happens with your assets after you pass away.
If you do not have a Will, your assets will be distributed according to the rules of intestacy.
Amending Wills
If you already have a Will, it should be reviewed regularly, especially if your personal and/or financial circumstances change, and if appropriate amended or a new Will prepared. Changes in your circumstances together with failing to update your Will, could mean your Will becomes ineffective or even invalid. This can result in your assets being devised contrary to your wishes and/or with potential legal challenges to your estate.
Powers of Attorney
A Power of Attorney is a document used to appoint a trusted person (your Attorney) to look after your financial and/or personal affairs, including making legal and medical decisions on your behalf, where you are unable to do so. Specific conditions or limitations can be placed on theses powers, to assist in protecting your best interests.
Probate and Letters of Administration
After someone passes away, certain legal processes must be followed in order to administer their estate and any assets and liabilities they have left behind.
Depending on the circumstances, and whether the deceased has a valid Will, the process may include an application to the Court for Probate, Letters of Administration or a Survivorship Application.
An Executor of a Will has significant legal obligations and responsibilities and must ensure the estate is administered pursuant to the terms of the Will.
If you are a beneficiary under a Will, depending on the type of gift you are bequeathed, you also have certain rights in respect of the estate and administration process.
A Grant of Probate from the Supreme Court ‘proves’ the deceased’s Will and gives authority to the Executor to administer the deceased’s estate. The requirement to obtain a Grant of Probate depends on a number of factors including the size of the estate, like the amount of funds held in bank accounts, the way in which property is held by the deceased and whether they had a bond with a nursing home.
A Grant of Letters of Administration from the Supreme Court appoints an Administrator when there is no Will, or the Executor of an estate is unable to act. Letters of Administration once granted gives the same powers to an Administrator as an Executor would have.
Estate Disputes and Part IV Claims
Estate disputes or Part IV Claims can arise during any stage of the administration of the estate, although usually in the six months following the grant of representation. If a party intends to pursue a claim against a deceased estate, notice should be given during this timeframe, otherwise, they may be estopped from pursuing such a claim, as it is out of time.
A claim or dispute could be pursued by an existing beneficiary or another party who has not been provided for under the Will. Most claims pursued against an estate, are on grounds of a constructive trust or under Part IV legislation.
Whether or not a party is eligible to make such a claim depends on several factors. Whether or not a claim will succeed against a deceased estate, depends on the circumstances of the plaintiff at the time of death and many other factors.
If you would like to discuss any of the above matters and your specific circumstances in relation to any aspect of Wills, Powers of Attorney or estates, including defending or making a claim against an estate, please email us at [email protected] or call us on (03) 9489 2488 for a no obligation discussion.