What would happen to your family, if something happened to you suddenly?
PREPARING YOUR WILL
TBA Law will guide you through our one-on-one process, so we get your important information and instructions for your Will. In our second appointment with you, we will arrange for the execution of your Will so that it’s legally valid. Once your Will has been executed, TBA Law can hold your original Will in our strongroom for safekeeping at no extra charge.
FREQUENTLY ASKED QUESTIONS
If you died without having a Will, you will be deemed to have died “intestate” and your estate will be distributed according to a legal formula outlined in legislation.
The person with the greatest interest in your estate will be entitled to be the Administrator, and you will not get to choose your Executor.
Without a Will, you will not have appointed a guardian for your young children; and if you have a spouse and young children, your spouse will not receive your entire estate.
When you make a Will, you appoint an Executor. The role of the Executor is to deal with your estate after your death.
Your estate consists of any money, property and shares in your sole name, your possessions, and sometimes the proceeds from your life insurance and superannuation. Your Will directs how your estate is divided and who gets what.
Once you have specified who you would like to appoint as your Executor, you can deal with any instructions about your funeral and provide for specific gifts of money or heirloom items.
The balance of your estate generally forms part of the “residue”, and is divided between the beneficiaries that you choose.
If your family home is owned by you and your spouse as “joint proprietors”, then the ownership will automatically pass to the surviving spouse without the need for a grant of probate. This means that the home is not included in your estate assets, and transferred outside the scope of your Will.
If your family home is owned by you and your spouse as “tenants in common”, then you will own a distinct share of the home, based on the proportion, and this will be included in your estate assets.
This is why it is important that we know how your family home is owned, in whose names, and to whom you want the home to pass to on your death.
Your superannuation fund and life insurance policies are distributed in accordance with your nomination which you set up with your superannuation fund or insurer.
This nomination could be binding or non-binding, and it is sometimes invalid if you haven’t chosen the correct category of people.
Superannuation and life insurance can be paid directly to your nominated person, or to someone else that the fund determines should have it, or it can be paid into your estate and be distributed in accordance with your Will.
If you want control over where this money is paid, then it is important to speak about it as part of the estate planning process.
Like any legal document, it is a core requirement that you have legal capacity to sign the document. This means a certain level of mental capacity and understanding of the document you are signing.
In particular, for signing a Will, you must understand:
- the value and extent of your property/estate
- who you are intending to make provision for in your Will
- how your estate will be distributed, and
- what the Will actually means
If someone can prove that you did not have the necessary mental capacity to sign the Will, because you were suffering from dementia, insanity, or some other medical condition, then the Will could be challenged.
The law requires your signature to be witnessed by two independent people over the age of 18 years. They must both be present when you sign.
A beneficiary should not be a witness if it can be helped. The rule used to be that a beneficiary who witnessed a Will would lose their entitlement under the Will, however this rule has now been abolished. However, it is still good practice to have independent people witness your signature to limit any claims about duress or improper dealing.
If is preferable for you to attend a TBA Law office to execute your Will, however if you cannot, you need to make sure that you follow our instructions to ensure your Will is validly executed.
Estate planning is an active process of re-evaluating the estate and working out a strategy to manage your legacy when circumstances in life change, such as:
- newly married couples or those separating and/or divorcing
- a change to the family’s assets
- changes to superannuation, insurance policies, or taxation levels
- the establishment of discretionary trusts
- the growth or sale of a business.
Estate Planning goes beyond drafting a Will. It includes:
- the assessment of assets
- the assessment of digital assets
- the assessment of debt and how it will be paid
- the assessment of life insurance
- the assessment of likely taxation
- advice regarding the possibility of claims against your estate
- the protection of assets
- as assessment of superannuation and preparing binding nominations
- guardians for your children, and
- potentially setting up trusts and/or modifying existing trusts.
SUCCESSION PLANNING FOR YOUR BUSINESS
It is not nice to think about, but inevitably one day you will die. It may be after a long period of illness during which you are incapacitated, or it may be sudden. If you suddenly got sick or died, what situation would your family be left with?
If you run a business, one day you will want to retire, or be forced to leave due to a sudden event, age or illness.
Whether you sell up, retire and close the business, or step aside for someone else, it is very important to have a succession plan in place that makes the transition easy – not only for yourself, but also for your family or employees.
A successful succession plan for a business is made involving all family members as it will take into account not only provisions for your retirement income, but also the plans, aptitudes and existing assets of younger generations.
DECEASED ESTATE ADMINISTRATION
TBA Law can assist you with an application for a grant of probate or representation after the death of a family member, and then assist you through the administration and distribution of the estate.
FREQUENTLY ASKED QUESTIONS
The executor is responsible for making the funeral arrangements and paying the funeral costs.
A beneficiary is a person who receives a gift or benefit from a deceased estate. Executors are accountable to beneficiaries, but it is the executor who is in charge of the estate, not the beneficiaries.
Executors must work in accordance with the Will, not the direction of the beneficiaries. The executor is answerable to the Supreme Court.
The level of information that an executor is required to give to a beneficiary depends on what the beneficiary receives in the Will. For more information download our Guide for Beneficiaries.
A typical estate is likely to take between 6 months and one year from the date of death until when distributions begin. But estates are notoriously prone to delays, usually because assets take a while to collect or sell.
It is not usual to have formal reading of the Will – this is an American concept. Usually the beneficiaries are notified of their interest by the executor, or the firm of solicitors appointed by the executor.
In Victoria, various categories of people are entitled to request a copy of the Will. Download our Guide for Beneficiaries for more information.
An executor is entitled to be reimbursed by the estate for any amounts he or she has incurred on behalf of the estate. Usually an executor will not receive any financial benefit for taking on the role, unless there is a gift in the Will, or all beneficiaries agreed that the executor should be paid, or there is a Court order.
PROBATE AND ESTATE ADMINISTRATION
Dealing with a deceased estate, and applying for a grant of probate, is one of the more difficult challenges in life. From mountains of paperwork to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life.
What is Probate or Letters of Administration?
A grant of Probate from the Supreme Court, or Letters of Administration, are both grants of representation. These give a person the legal right to administer the estate of a deceased person – the executor in the case of a grant of Probate, and the administrator in the case of Letters of Administration.
Why is Probate needed?
A grant of probate is not needed in every estate. If there are no estate assets that need probate, then a grant of representation is not required.
For an executor to deal with real estate (sell or transfer the family home, for example), they will need a grant of probate. Some shareholdings and bank accounts will also require probate before they are released or transferrable.
Let TBA Law help with:
- interpreting the Will or dealing with intestacy
- identifying estate assets and liabilities
- obtaining valuations of estate property
- applying for Probate of the Will in the Supreme Court
- applying for Letters of Administration (if the Will is invalid or is lost)
- collecting estate assets, and selling or transferring estate property
- paying estate debts
- advising about family and testamentary trusts
- administering trust funds
- distributing bequests and inheritances to beneficiaries
- organising final estate tax returns
- family mediation and negotiation
- contesting wills and defending estate litigation.