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Wills, Probate and Estates

iLaw Barristers and Solicitors can give you accurate and professional advice in all areas of Estate Planning, including:

Our wills, probate and estates lawyers are experienced in this field of law. Please contact us now to speak with a member of our legal team. You can also send your enquiry online now and we will contact you shortly.

Making a Will

There are many good reasons for choosing to make a Will. People often assume that, without a Will, any property they own will simply go to the remaining members of their families.

This is not always the case. By having a solicitor prepare a Will for you, you can decide for yourself who is entitled to benefit from your Will.

Most of your instructions can be provided in your initial consultation, however, we draw your attention to the following:

Some people do not use the names that appear on their birth certificate. For example, someone whose name is Margaret may prefer the name Maggie, and so she may never use her real name. This may create problems if assets or property are held in the other name and mention is made of the fact in the Will.

The persons who receive property under your Will are called ‘beneficiaries’. You can nominate any person/s or entity you wish to be your beneficiary.

When naming beneficiaries, please follow these guidelines:

  • Organisations - Beneficiaries need not be people – they can be organisations, charities, schools, etc. If you would like to leave some or all of your property to a particular body or institution, we will need to have the accurate name, of the organisation.
  • Adult Beneficiaries - If the beneficiaries are adults make a list that shows the full name, address and occupation of each adult beneficiary.
  • Children Beneficiaries - If the beneficiaries are children make a list that shows the full name, address and date of birth, of each child beneficiary.

We will also need to know the age at which the children are to receive their share of the property. If a large sum of money is involved, for example, you might want to have the child wait until he or she is a certain age before the money is distributed.

A beneficiary named in your Will may die before you do. It is important, therefore, that you make provision for someone else to take that beneficiary’s share in case this happens. Your alternatives are:

  1. The share of the deceased beneficiary can be spread amongst the other beneficiaries, eg:
    • You leave your property to Jane, Bob, Brian and Kate (one quarter share each).
    • Bob passes away before you do.
    • The property then goes to Jane, Brian and Kate (one third share each).
  2. The share of the deceased beneficiary can go only to a particular beneficiary, eg:
    • You leave your property to Jane, Bob, Brian and Kate (one quarter share each).
    • Bob passes away before you do.
    • Jane is to get Bob’s share, so that –
      • Brian gets one quarter share
      • Kate gets one quarter share
      • Jane gets half share
  3. The share of the deceased beneficiary can go to a different person altogether, eg:
    • You leave your property to Jane, Bob, Brian and Kate (one quarter share each).
    • Bob passes away before you do.
    • Bob’s share of the property is to go to Jack, so that –
      • Jane gets one quarter share
      • Brian gets one quarter share
      • Kate gets one quarter share
      • Jack gets one quarter share
  4. The share of the deceased beneficiary is to go to his/her children, if any, eg:
    • You leave your property to Jane, Bob, Brian and Kate (one quarter share each).
    • Bob passes away before you do.
    • Bob has two children.
    • Bob’s share goes to his children, so that -
      • Jane gets one quarter share
      • Brian gets one quarter share
      • Kate gets one quarter share
      • Bob’s children get Bob’s quarter (ie one eighth share each).

The Executor of the Will is the person who will be entrusted to distribute the property according to the instructions in your Will. In many cases, where property is left to children, the Executor also acts as Trustee, taking care of the property until such time as the children become entitled to their share in the estate.

When nominating an Executor, you should follow these guidelines:

  • The position of Executor is an important one and should be given only to someone who you feel you can trust. Think carefully about who you would like to fill this position.
  • You can nominate more than one person to be Executor.
  • It is important that you obtain the person’s consent before nominating them as Executor. As the position involves a great deal of responsibility, not everyone will wish to be nominated.
  • We will need the Executor’s full name, address and occupation.

Powers of Executors

You should provide instructions to the Executor:

For example, it may be necessary to hold property until children turn 18 years old. Think carefully about what you would like do with the property during this period.

For example, if the property is a house, is it to be rented during that time, with the rents being held on trust for the children? If you wish, you can leave these sorts of decisions to the Executor.

Is there anything that you definitely do not want the Executor to do under the Will? For example, you may not want the family home sold. This wish can be expressed in your Will.

You will need to consider whether the Executor will be allowed to use funds from the estate to help pay for the education and living expenses of your children. It may even be necessary in such a case to sell the property.

As in the case of beneficiaries, an Executor may pass away before you do. It is not wise to nominate someone who would be unlikely to outlive you. Make sure you nominate a ‘stand by’ Executor in case the person you choose to be Executor dies before you do.

If you have young children, their welfare will usually be the responsibility of the surviving parent. However, in case your husband or wife dies before you do, you should appoint a Guardian in your Will. A Guardian is someone who will take care of your children and make all of the decisions that you normally would as a parent in your place.

When selecting a Guardian, please follow these guidelines:

  • As with Executors, this position is an important one and you should only choose someone you can trust. You will also need to discuss with that person whether he/she is willing to take on the role to be a Guardian.
  • You can name more than one person to be a Guardian.
  • We will need the full name, address and occupation of any Guardian you select.
  • As with Executors, you will need to choose a ‘back up’ Guardian in case the person/s you choose do not outlive you.

If you decide that money from your estate can go towards the living expenses and education of your child, the Guardian will receive this money.

Often property is owned jointly, what many people do not release is that there are two different types of co-ownership.

You can be either a joint tenant or a tenant in common. You will need to know which of these you are. Checking the title deeds will often provide this information. Alternatively we can do a title search to obtain this information.

The main difference between the two types of co-owners is that a joint tenant cannot leave his or her share of the property to anyone else. This is because joint tenants fall under a rule of law called ‘survivorship’. Under this rule, each co-owner of the property is seen as owning all of the property rather than owning only a share in it. This means that one co-owner does not have a separate share that he or she can leave behind to someone in a Will. Instead, when a co-owner dies, his or her ownership of the property is then owned by the surviving co-owners.

In the end, when there is only one survivor, that survivor owns the entire property. If you are a joint tenant, we will explain this situation to you.

If you want to leave particular items to certain people, it may be necessary for you to describe that property.

For example, if you want a certain piece of jewellery to go to someone, we will need to know which piece of jewellery it is. The description must be detailed enough to identify that piece from other jewellery owned, for example "my gold ring with three rubies in it".

iLaw Barristers and Solicitors will keep your Will in safe custody for you if you wish, at no charge.

You are free to alter your Will at any time and as often as you wish.

Your circumstances can change significantly over time so it is advisable to review your Will regularly.

On marriage, your current Will is automatically revoked unless it states that it is made in contemplation of a specific marriage. If you divorce, your divorced spouse is not entitled to any assets under your Will unless you specify otherwise.

You may also wish to change your Will if any of the following occur:

  • Birth of child or grandchildren
  • Death of a beneficiary or executor
  • Financial Changes
  • Home or property changes.

Contesting a Will - Family Provision Applications

In addition to the remedies available by reason of incapacity or coercion of the testator or testatrix, a Will can be contested for failing to adequately provide for the proper maintenance and support of a defined class of persons under Section 7 of Inheritance (Family and Dependants Provision) Act 1972

You can make a Family Provision Application to vary the distribution of an estate whether a person has died intestate (without a Will) or testate (with a Will).

However, time limits apply to the making of a Family Provision Application. Proceedings must be initiated in the Court within six months of the death of the deceased. If an Application is made after this time, the Court has discretion as to whether to hear the Application. The onus is on the applicant to show that the merits of the case warrant an extension of the time limit.

Furthermore, notice must be given to the personal representative of the estate so as to establish a duty not to distribute the estate before the time limit.

Who can apply?

The class of persons who can apply are spouses (married or de facto), children or dependents, grand children and parents of the Deceased. These terms are further defined in the Inheritance Act.

What kind of Orders may be made by the Court?

The Court has a wide discretion to make an Order under the Family Provisions for such provision as it thinks fit. Accordingly, 'adequate provision' will depend on the circumstances of the estate and your personal circumstances.

Administration of an Estate

iLaw Barristers and Solicitors can provide professional advice and assist you in all aspects of administering an estate, including if you wish to contest a will or vary the distribution of an estate.

If the deceased died testate (with a Will), we can assist you in applying for Probate. A Grant of Probate is issued by the Supreme Court and confirms your appointment as the deceased personal representative. It involves proving that the testator or testatrix is deceased and that the Will you are appointed as Executor is the most recent Will. A Grant of Probate conclusively determines the validity of a Will but not the validity of the dispositions contained in the will. It also protects you in your role as executor from any potential action by the beneficiaries of the Will.

If the deceased died intestate (without a Will) or in any other case, we can assist you to apply for Letters of Administration. It involves a similar process to the Grant of Probate.

The steps involved in administering an estate varies according to the circumstances of the estate. Please contact us to discuss the process as it applies to you.

Power of Attorney and Health Directives

There are two types of power of attorney:

  • general power of attorney
  • enduring power of attorney.

Both types involve a formal agreement giving someone else the power to make decisions on your behalf. It works like this:

  • you sign a form giving power of attorney to the person of your choice
  • you specify the types of decisions that the person you choose can make
  • as your attorney, they can then act on your behalf if necessary.

The decisions that your attorney makes for you have the same legal force as if you had made them yourself.

If you are unable to make your own decisions, decisions can be made for you on a formal or an informal basis. Informal decisions can be made by an adult’s existing support network of family and close friends. This is distinct from decisions being made on a formal basis by an attorney appointed under an enduring power of attorney or advance health directive, a statutory health attorney, a guardian or administrator appointed by law or Court.

A power of attorney is also different to a Will. Making a Will allows you to state how you want your assets to be distributed after your death. A Will also allows you to choose an Executor who will be responsible for making sure your wishes are met.

General power of attorney

A general power of attorney is given to someone to make financial decisions on your behalf while you have capacity to make decisions, for example if you are overseas and need someone else to sell your house or pay your bills.

Enduring power of attorney

An enduring power of attorney is an important legal document you can prepare to give someone else the power to make personal or financial decisions on your behalf.

You may not always be able to make decisions when you need to. You may be too ill to make choices about your medical treatment, or you could suffer a disability such as a stroke that prevents you from communicating your wishes to others.

To make an enduring power of attorney you must be an adult capable of making your own personal and financial decisions. Having the capacity to make decisions means that you can:

  • understand the nature and effect of a decision
  • freely and voluntarily make those decisions; and
  • communicate the decisions in some way.

You also need to understand the nature and effect of an enduring power of attorney including the contents of the document, consequences of preparing the document and when the power begins.

In addition to the Enduring Power of Attorney, the Guardianship and Administration Act 1990, provides the legal framework for 2 other tools that can enable adults to exercise an element of control over how decisions will be made on their behalf should they ever lose the capacity to make decisions for themselves.

These are an:

  • Enduring Power of Guardianship, which enables an adult with full legal capacity to appoint another person to make decisions on their behalf about personal, lifestyle and treatment matters.
  • Advance Health Directive, which enables an adult with full legal capacity to make decisions about what treatments they might want - or not want - to receive if they ever became sick or injured and were unable to communicate their wishes personally. An Advance Health Directive would speak for them