Wills & Estate Planning

Powers of Attorney and Appointments of Medical Treatment Decision Maker are generally invalid if signed incorrectly.

An incorrectly signed Will (called an ‘informal Will’) might still be valid. However, the executors almost always incur extra expense because the Court requires an explanation as to why the requirements for signing a Will weren’t followed, usually via an affidavit from a witness. It can be expensive, and there’s no guarantee that the Court will grant probate of an informal Will.

‘Probate’ is the executor ‘proving’ that the Will is valid, and obtaining the Court’s permission to distribute the assets.

Theoretically, yes! However, it would be expensive to satisfy the Court that the video recording should be treated as a last Will. We do not recommend it. A very recent case in the Victorian Supreme Court dealt with this exact issue, and the Court decided (after hundreds of thousands of dollars in legal costs) that the video recording was not a valid Will.

A claim for a share, or a larger share, out of an estate can be made if the deceased had a moral duty to provide for a claimant and they can show that the Will didn’t adequately provide for their proper maintenance and support. A claimant must be closely related to the deceased and generally includes a spouse or former spouse, a child or stepchild, a parent or a grandchild who was dependent on the deceased.

Yes. If the deceased did not have a valid Will then Letters of Administration can be applied for by any person/s entitled to inherit the deceased’s assets. Once Letters of Administration have been granted and an administrator appointed, eligible persons can make a claim.

If a person wishes to make a claim on a deceased estate, they must make an application to the court within six months of the Grant of Probate or Letters of Administration.

A Will is a legal document that sets out who you want to receive your assets after you die.

When you are preparing your Will you need to think about:

• which of your family or friends you would like to inherit your assets,
• what your significant assets are,
• what your significant debts are,
• who you would like to be executor and trustee of your estate,
• if you have young children who you would like to name as guardian

You need to bring with you copies of all paperwork related to:

• your significant assets including the title to any real estate,
• bank account statements,
• information about your share holdings and any other investments,
• details about your debts including your mortgage or car loan,
• and have
• the full name and address of those who you would like to inherit your assets,
• the full name and address of your executor, trustee or guardian

An executor of a Will carries out your wishes after you die. The role of the executor is to collect in all your assets and manage their distribution in accordance the terms of the Will. A trustee looks after ongoing gifts to your family or friends for the time stated in a Will – for example, a trust for your children or grandchildren until they reach the age of 18.

Anyone over the age of 18 can be appointed as executor. However, you need to be aware that an executor is left with the stress and responsibility involved in administering your estate at a time when they may be grieving. As such it is important that you ensure that your executor will have the time and capability to carry out the required duties.

If you are able you can visit our Bendigo or Castlemaine office.  If you are frail, in hospital, a nursing home, palliative care, we can visit you or your loved one.

If you and your spouse own truly everything jointly, then all assets will pass to the survivor when the first of you dies.  However, most couples will not own absolutely everything in joint names. Even if you do, joint ownership only passes title when the first of you dies.  It does not pass title once both of you have died.  You also need to consider that unless the surviving spouse prepares a Will after the death of the first spouse, all assets will eventually pass to the family of the surviving spouse, and nothing will pass to the family of the first spouse.

If you die without a Will (known as intestate) your assets will be distributed according to a pre-determined formula, with certain family members receiving a defined percentage of your assets despite what you may have wished.

In Victoria, a person who has possession of the Will of a person who has died must allow the following to inspect and make copies of the Will:

• any person named or referred to in the Will;
• any person named or referred to in any earlier Will as a beneficiary;
• any spouse at the date of your death;
• any domestic partner;
• any parent, guardian or children of the deceased person;
• any person who would be entitled to a share of the assets if the deceased person had died without a Will;
• any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate if the deceased person had died without a Will;
• any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

It is important to store your original Will in a safe place. It is a good idea to tell your executor and someone close to you where your Will is stored. We store Wills in safe custody on behalf of our clients free of charge.

You should review your Will every three to five years and whenever your financial or family circumstances change including when you separate, re-partner, marry, divorce, a person named in your Will dies, or you have children or grandchildren.