Wills & Estate Planning
Estate planning can be one of the most important things you ever do in your life. Wills and Powers of Attorney can give you and your family certainty and ensure that your loved ones are cared for once you are gone. Having your documents drafted to reflect your wishes accurately will remove much of the stress later on.
Our solicitors have the breadth of knowledge required to not only assist you in documenting your wishes, but drawing to your attention potential issues that may arise that you may not have considered beforehand.
The types of matters we can assist with include:
- Wills & Testamentary Trusts and Special Disability Trusts
- Powers of Attorney
- Appointment of Medical Decision Maker
- Family provision claims
- Probate applications & letters of administration
- Guardianship applications
To discuss your matter with our Wills and Estate Planning team, please Contact Us to book an appointment.
Q: What is an Executor and who should I nominate to be one?
An Executor is your legal representative once you have passed away and it is their job to finalise your personal, financial and legal affairs.
They are bound by what your wishes of your Will and is the person who makes the Application for Grant of Representation (Probate). Once probate is granted, the Executor is the person who then distributes the Estate in accordance with the Will and takes care of things, for example, such as the sale of any property.
It is an important role and vital that in choosing an Executor, you should consider not only their age, maturity and capacity to do the job, but also the practicality of whether they can do the job. For example, it might be all well and good to nominate your sister or brother but if they live overseas or interstate, this can make the process significantly slower and more difficult when the time comes to obtaining probate.
Q: If I have a Will, why do I need a Power of Attorney?
A Will comes into effect once you have passed away – it has no legal power while you are still alive. A Power of Attorney allows you to nominate someone to deal with your affairs while you are still alive.
When might you need that? While we often think that incapacity comes with old age, incapacity can be the result of an accident, medical condition (i.e. stroke, heart attack) or other circumstances which are beyond our control and can happen at any time.
Once you have lost capacity, it is not possible for you to sign a Power of Attorney and someone who intends to take over your affairs must then make an application to the Victorian Civil and Administrative Tribunal in order to obtain administration of your living estate.
Q: What is the process for probate?
“Probate” in short is a request from the Court to recognise a testamentary document to be the last Will and Testament of the deceased person, and confers a power on the instituted Executor the rights to act on behalf of the Estate. Where a person left no Will, the Court grants “Letters of Administration” instead of “Probate”.
The first step is to notify all relevant institutions of the person’s passing; To do this, we need a death certificate. It can take anywhere between 6-8 weeks for banks and other financial institutions to return correspondence and provide a “date of death” summary balance of the person’s accounts and holdings. This information is critical as it forms part of their “Inventory” to be filed with probate.
Before an application for probate can be made, the intention to file must be advertised via the Supreme Court of Victoria’s RedCrest website. Once 15 days has lapsed, the application for a grant of probate can then be filed.
Thereafter, the Supreme Court of Victoria estimates between 6-10 business days from the date it receives the original Will to grant probate.
After probate has been granted, the process of “calling in” all the assets begins.
Overall, you can expect that the process to obtain the grant is likely to take 2-3 months, depending on how quickly the various institutions take to return correspondence.