Wills & Estates FAQs

Choosing the right executor is one of the most important decisions you'll make in your Will. The executor is responsible for administering your estate according to your Will. Choose someone trustworthy, organized, and willing to take on the role. It's common to appoint a close family member, friend, or a professional such as a solicitor or trustee company.

Here's what a Will actually is and why you need one. A Last Will and Testament is a legal document that outlines how you wish your assets to be distributed after your death. It allows you to appoint an executor to manage your estate and specify beneficiaries for your property and possessions.

Many people are surprised to learn that some assets can't be dealt with in your Will. These include:

• Jointly owned property, which typically passes to the surviving owner.
• Superannuation benefits, unless a binding death nomination directs them to your estate.
• Life insurance policies with nominated beneficiaries.

Store your Will in a safe and accessible place, such as:

• With your solicitor.
• In a secure home safe.
• With the Victorian Will and Powers of Attorney Registry, which offers free storage for Victorians.

Ensure your executor and close family members know its location.

If you don't have a Will, you lose control over what happens to your estate. Having a Will ensures that your assets are distributed according to your wishes. Without a valid Will, your estate will be distributed according to the laws of intestacy, which may not align with your preferences. This can lead to unintended beneficiaries and potential disputes among family members.

For a Will to be valid in Victoria, it must:

• Be in writing.
• Be signed by the testator (the person making the Will) or by someone else in their presence and at their direction.
• Be signed in the presence of at least two witnesses, both present at the same time.
• Be signed by the witnesses in the presence of the testator.

The testator must also have the mental capacity to understand the nature and effect of the Will.

It's recommended to review your Will every few years or after significant life events, such as marriage, divorce, the birth of a child, or acquiring substantial assets. Regular updates ensure your Will reflects your current wishes and circumstances.

Dying without a Will (intestate) means your estate will be distributed according to the laws of intestacy. This may result in your assets going to relatives you did not intend to benefit, and can cause delays and additional costs in administering your estate.

Yes, you can revoke or change your Will at any time, as long as you have the mental capacity to do so. This can be done by creating a new Will or by making a codicil (a document that amends the Will). Destroying the original Will with the intent to revoke it is another method.

While it's possible to write your own Will, consulting a lawyer is advisable to ensure it meets all legal requirements and accurately reflects your intentions. A poorly drafted Will can lead to disputes or be deemed invalid.

Under the Administration and Probate Act 1958 (Vic), eligible persons include:

• The spouse or domestic partner at the time of the deceased's death
• Children, including adopted and stepchildren
• Individuals who believed the deceased was their parent and were treated as such
• Former spouses or domestic partners under certain conditions
• Grandchildren or members of the deceased's household who were dependent on the deceased

Estate disputes can be costly — here's what to budget for. Costs can include legal fees, court fees, and potential costs awarded to the other party if the claim is unsuccessful. Some firms offer no win, no fee arrangements, but it's essential to understand the terms fully.

Here's what the court actually looks at when deciding a family provision claim:

• The nature of the relationship between the applicant and the deceased
• The applicant's financial resources and needs
• Any physical, mental, or intellectual disabilities of the applicant
• The size and nature of the estate
• Competing claims from other beneficiaries

While not mandatory, engaging a lawyer experienced in wills and estates is highly recommended. They can provide guidance on eligibility, grounds for contesting, and represent you in court proceedings.

Outcomes may include:

• Provision of a larger share of the estate to the applicant
• Alteration of the distribution among beneficiaries
• Dismissal of the claim, leaving the original will intact

A TFM claim must be filed within six months from the date of the grant of probate or letters of administration. Extensions may be granted in certain circumstances, but prompt action is advisable.

Grounds include:

• The deceased had a moral duty to provide for the applicant
• The applicant was not adequately provided for in the will
• Factors such as the applicant's financial needs, relationship with the deceased, and any disabilities

Yes, if it's believed that the deceased lacked testamentary capacity due to mental health issues, the will's validity can be challenged. Evidence must show the deceased did not understand the implications of their will at the time of its creation.

To reduce the risk:

• Ensure the will is properly drafted and executed
• Clearly outline reasons for any unequal distributions
• Regularly update the will to reflect current intentions
• Consider including a no-contest clause, though its enforceability varies

To contest a will means to legally challenge its provisions, typically on the grounds that the deceased did not make adequate provision for certain individuals. In Victoria, this is known as a Testator's Family Maintenance (TFM) claim.

Here's what you'll need to gather to apply for probate in Victoria:

red:
• The original will.
• A certified copy of the death certificate.
• An inventory of the deceased's assets and liabilities.
• A completed application form.

Additional documents may be necessary depending on the estate's complexity.

Probate is just the beginning — here's what an executor needs to do once it's granted:

• Collecting and valuing the deceased's assets.
• Paying any outstanding debts and taxes.
• Distributing the remaining assets to beneficiaries as specified in the will.
• Maintaining accurate records of all transactions.

Executors must act in the best interests of the estate and its beneficiaries, adhering to legal and ethical standards.

Probate can be contested — here's when and on what grounds:

• The validity of the will.
• The deceased's testamentary capacity.
• Undue influence or fraud.

Contesting probate involves legal proceedings, and it's advisable to seek legal advice if you intend to challenge a will.

For detailed information, visit the Supreme Court of Victoria's Wills and Probate section. Additionally, the Law Institute of Victoria's Find Your Lawyer Referral Service offers a 30-minute consultation with a lawyer free of charge, which can be beneficial for personalized guidance.

Yes, there are fees for lodging a probate application with the Supreme Court of Victoria. The fee amount depends on the gross value of the estate. For the most current fee schedule, refer to the Supreme Court's official website or contact their office directly.

The duration of the probate process varies based on factors such as the estate's complexity and the court's workload. Generally, once all required documents are submitted, the Supreme Court of Victoria processes probate applications within a few weeks. However, complications like disputes or missing documents can extend this timeframe.

Probate is a legal process that confirms the validity of a deceased person's will and grants the executor the authority to administer the estate. In Victoria, the Supreme Court issues a grant of probate, allowing the executor to manage and distribute the deceased's assets according to the will.

The executor named in the will is responsible for applying for probate. If no executor is named, or the named executor is unable or unwilling to act, an interested party, such as a beneficiary, can apply for letters of administration with the will annexed.

Whether probate is required depends on the nature and value of the deceased's assets. If assets are held solely in the deceased's name, institutions like banks may require a grant of probate before releasing funds. However, jointly owned assets typically transfer to the surviving owner without the need for probate. It's advisable to consult with the relevant institutions to determine their specific requirements.

If a person dies without a valid will (intestate), the estate is distributed according to the rules set out in the Administration and Probate Act 1958. An interested party, such as a close relative, can apply for letters of administration to manage the estate. The distribution hierarchy typically prioritizes spouses, children, and other close relatives.

Preparation is the key to a smooth estate administration process. Here's what helps most:

• Maintain an up-to-date and valid will.
• Clearly outline your wishes regarding asset distribution.
• Appoint a trustworthy and capable executor.
• Discuss your plans with family members to prevent future disputes.
• Seek professional legal advice to ensure compliance with all legal requirements.

The individual responsible is known as the executor if named in the will, or an administrator if appointed by the court in the absence of a will. Their duties include collecting assets, paying debts, and distributing the estate to beneficiaries.

Good news on taxes. Currently, there are no death duties or inheritance taxes in Victoria. However, the estate may be subject to income tax on earnings generated after the deceased's passing, and capital gains tax may apply to the sale of certain assets.

An executor's responsibilities include:

• Collecting and managing the deceased's assets.
• Paying any outstanding debts and taxes.
• Distributing the remaining assets to beneficiaries as specified in the will.
• Ensuring the estate is administered according to legal requirements.

Key documents include:

• Will: Specifies asset distribution after death.
• Enduring Power of Attorney: Appoints someone to make financial and legal decisions on your behalf.
• Medical Treatment Decision Maker: Designates an individual to make medical decisions if you're incapacitated.
• Advance Care Directive: Outlines your preferences for future medical treatment.

Probate is a legal process that validates a deceased person's will and authorizes the executor to administer the estate. It's typically required when the estate includes significant assets, such as real estate or substantial bank accounts.

Passing away without a valid will is termed dying intestate. In such cases, the distribution of your estate follows the intestacy provisions outlined in the Administration and Probate Act 1958 (Vic). Typically, assets are allocated to your next of kin in a predetermined order.

The duration varies based on factors like estate complexity and court processing times. Generally, obtaining a grant of probate can take several weeks, followed by additional time to administer the estate.

Estate planning involves organizing the management and disposal of your assets during your lifetime and after death. It ensures that your assets are distributed according to your wishes, minimizes taxes, and provides for your loved ones.

Yes, certain individuals, such as spouses, children, or dependents, can challenge a will if they believe they've been unfairly provided for. This is done through a Family Provision Claim under the Administration and Probate Act 1958 (Vic).

Not all Powers of Attorney are the same — here's how the scope of decision-making differs depending on the type:

• Financial Matters: Managing bank accounts, paying bills, buying or selling property, and handling investments.
• Personal Matters: Deciding on living arrangements, access to support services, and other personal or lifestyle choices.

It's important to specify the extent of your attorney's powers in the document.

Any individual aged 18 years or older with decision-making capacity can create a Power of Attorney. Decision-making capacity means the ability to understand, retain, and use information relevant to a decision, and to communicate that decision effectively.

In Victoria, there are three main types of Powers of Attorney:

• General (Non-Enduring) Power of Attorney: Authorises the attorney to make decisions on your behalf for a specified period or purpose. It becomes invalid if you lose decision-making capacity.
• Enduring Power of Attorney: Allows the attorney to make financial and/or personal decisions on your behalf and continues to be effective even if you lose decision-making capacity.
• Supportive Power of Attorney: Appoints an attorney to support you in making and implementing your own decisions, without transferring decision-making authority.

An Enduring Power of Attorney is one of the most important documents you can have in place — here's why. An Enduring Power of Attorney is a legal document that enables you to appoint someone to make financial and/or personal decisions on your behalf. The term 'enduring' signifies that the authority remains valid even if you lose the capacity to make decisions in the future.

Here's what a Power of Attorney actually means and does for you. A Power of Attorney is a legal document that allows you (the principal) to appoint another person (the attorney) to make decisions on your behalf regarding financial, legal, or personal matters. This arrangement ensures that your affairs are managed according to your wishes if you become unable to make decisions yourself.

The witnessing requirements vary based on the type of Power of Attorney:

• General (Non-Enduring) Power of Attorney: No legal requirement for witnessing unless the principal is unable to sign; in such cases, two independent adult witnesses are needed.
• Enduring Power of Attorney: Requires two independent adult witnesses, one of whom must be an authorised witness (e.g., a Justice of the Peace or registered medical practitioner). Witnesses cannot be relatives of the principal or attorney, or individuals involved in the principal's care or accommodation.

You should appoint someone you trust implicitly, who understands your values and preferences, and is willing and able to act in your best interests. This person should be reliable, capable of managing the responsibilities involved, and likely to be available when needed.

Yes, as long as you have decision-making capacity, you can revoke a Power of Attorney at any time. The revocation must be documented in writing and communicated to the attorney and any relevant parties. It's advisable to seek legal advice to ensure the revocation is executed properly.

If you don't have a Power of Attorney and lose the capacity to make decisions, the Victorian Civil and Administrative Tribunal (VCAT) may appoint an administrator or guardian to make decisions on your behalf. This process can be time-consuming and may result in someone being appointed who doesn't fully understand your preferences.

The commencement of a Power of Attorney depends on your specifications:

• Immediate Effect: The attorney's powers begin as soon as the document is executed.
• Specified Date or Event: The powers commence on a particular date or upon the occurrence of a specified event, such as your loss of decision-making capacity.

Clearly stating your intentions in the document is crucial.

The tax treatment of trusts is a common question — here's how it works. Trusts are generally not taxed directly. Instead, beneficiaries are taxed on the income they receive from the trust at their individual tax rates. However, if the trust retains income, the trustee may be taxed on that income at the highest marginal tax rate.

Yes, a trust can be a beneficiary of another trust, provided the trustee of the beneficiary trust is acting in its capacity as trustee. This arrangement can be complex and may have tax implications, so professional advice is recommended.

Trustees are obligated to:

• Act in the best interests of the beneficiaries.
• Manage trust assets prudently.
• Adhere to the terms of the trust deed.
• Avoid conflicts of interest.
• Maintain accurate records and provide information to beneficiaries as required.

In Victoria, a trust can have a lifespan of up to 80 years, depending on the terms set out in the trust deed. Some trusts, like charitable trusts, can exist indefinitely.

Understanding the roles in a trust structure is important before setting one up. The settlor is the person who establishes the trust by transferring assets to the trustee and setting out the terms of the trust in the trust deed. After the trust is established, the settlor typically has no further involvement.

A trust is a legal arrangement where a person or company (the trustee) holds property for the benefit of others (the beneficiaries). The trustee manages the trust's assets according to the terms set out in the trust deed.

Common types of trusts include:

• Discretionary Trusts: Trustees have discretion over distributions to beneficiaries.
• Unit Trusts: Beneficiaries (unit holders) have fixed entitlements.
• Testamentary Trusts: Created through a will, effective upon death.
• Special Disability Trusts: Established to provide for individuals with disabilities.

A trustee can be an individual over 18 years old and not under a legal disability, or a corporation. The trustee is responsible for managing the trust's assets in accordance with the trust deed and for the benefit of the beneficiaries.

Yes, stamp duty may be payable on the transfer of dutiable property into a trust. The amount depends on the type of property and the nature of the trust. It's advisable to consult with the State Revenue Office or a legal professional for specific guidance.

A trust deed is the legal document that outlines how the trust will operate, including the trustee's powers, beneficiaries' rights, and the management of trust assets. It serves as the rule book for the trust's administration.