Why make a will?
A will is a legal document which sets out how you want your assets to be distributed on your death. It gives you the opportunity to provide for your family and friends after you die. If you do not leave a will, your estate will be distributed according to a formula set out in legislation. In some circumstances, the result of dying without a will can be disastrous for your family or loved ones. Having a lawyer prepare your will ensures your assets will be distributed according to your wishes.

Who can make a will?
Any person over the age of 18 who has the mental capacity to understand what they are doing can make a will. In limited circumstances, the court can approve a will made by a minor. People who are mentally incapable of creating a will can have specific wills made for them which are then approved by the court.

What if there is no will?
When there is no will or no valid will, you are said to die "intestate". The Administration and Probate Act 1958 (Vic) sets out a formula (rules of intestacy) for how your estate will be distributed and to whom.
If you die leaving a partner and children

• Your partner will receive the first $100,000, the personal
• chattels and one-third of the balance of your estate.
• Your children receive the remaining two-thirds shared equally among them.
• Your partner has the option of buying your interest in the shared home.

If you die leaving a spouse and a partner
Your estate will be shared by your spouse and your partner in the proportions set out in the legislation. For example, if you have lived with your partner for between 4 and 5 years, your spouse and your partner will share your estate equally.

If you do not have a partner or children

• Your estate will pass to your parents if alive.
• If there are no living parents then it will pass to your brothers and sisters.
• If there are no brothers and sisters then it will pass to your nieces and nephews.
• If no relatives can be found after extensive searching, the government will inherit your estate.

The legislation recognises partner to be a spouse, or a de facto partner irrespective of gender (a domestic partner), with whom you have been living for at least two years or for a lesser time where there is a child of the relationship.

Disadvantages of not having a will

• You have no control over the distribution of your estate.
• The rules of intestacy as set out above may not accord with your wishes.
• There may be a forced sale of the family home or car to cover other beneficiaries' share of the estate.
• No guardian has been appointed for your children.
• Your children or grandchildren may not receive the financial protection you would have desired.
• Partners, stepchildren, friends and favourite charities may miss out.
• Incapacitated members of your family and their own assets may be put at risk.
• Your estate may be administered by someone you would not appoint.

Why should I revise my will?
A will should reflect your current domestic and financial situation. As circumstances in life change, so should your will. Revise your will at least every five years or when a significant event such as marriage, the birth of a child, or the death of a family member takes place.
Even if you haven't changed your will, certain events such as marriage and divorce may still affect it. Generally speaking:

• a will made prior to a marriage is not valid.
• separation (but not divorce) from a spouse does not affect the will.any gifts to your spouse or their appointment as executor are automatically revoked on divorce.

It may also be necessary to appoint a guardian for your children after their birth or to review your appointed executor.

Executor of the 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, houses, land, cars, shares, insurance policies, superannuation entitlements, clothes, jewellery and
any other goods owned by you.
The executor performs a number of duties in relation to the deceased. These include:

• attending to funeral arrangements;
• notifying any financial institutions and other relevant organisations of the deceased's death;
• ascertaining the size of the estate and taking control of all assets;
• identifying the beneficiaries and their entitlements;
• obtaining the grant of probate or letters of administration;
• resolving all estate liabilities and disputes. This will include settlement of income tax liability. It can also include waiting for the expiration of the six-month period after the grant of probate in which family claims against the estate can be started;
• distributing assets to beneficiaries either by transfer of ownership or by the sale of assets and distribution of the proceeds;
• investing funds or managing the assets of the estate on behalf of beneficiaries;
• keeping property held in trust for the life of beneficiaries in
  good repair, insured and covered for rates and taxes; and
• acting impartially and in the best interests of all beneficiaries.
  

If your spouse or another person is to be named as your sole beneficiary in your will, it is often appropriate to name that person as your sole executor. There is nothing to prevent a beneficiary from being an executor. Otherwise you should appoint another adult, a member of your family, a friend or a professional adviser to act as executor. You can also appoint a trustee company as your executor.
A testamentary trust can be established under a will. It appoints a trustee or trustee company, who may also be the executor of the will, to use property of the estate in a way specified in the will, for the benefit of the beneficiary.

Probate and letters of administration
When a person dies leaving a will, a grant of probate must be obtained from the Registrar of Probates in the Supreme Court. A grant of probate is a court order confirming the validity of the will.
When a person dies without a will, or there is a will but an executor has not been appointed, an application for letters of administration must be made to the Registrar of Probates in the Supreme Court.
The procedure for both is similar and your lawyer can advise you of the requirements.
A grant of probate or letters of administration is required to collect the assets of the estate for the benefit of the beneficiaries.
It will be required for:

• access to the deceased's bank accounts;
• obtaining the title of the deceased's property; and
• the collection, administration and protection of the deceased's property.

A grant of probate or letters of administration provides protection to the beneficiaries. It ensures they are the only ones who will receive the deceased's property. Any challenges to the validity of the will must be heard in the Supreme Court.
The rights of beneficiaries
Beneficiaries who are left a specific gift of land, money or goods are not entitled to obtain general information about the estate. They are however entitled to reasonable diligence from the executors. If a gift has not been transferred within a year of death, then an explanation should be provided.
Beneficiaries entitled to a share in the residuary estate, which is the estate left after specific gifts, are entitled to:

• a copy of the statement of assets and liabilities;
• a copy of annual accounts;
• inspection of share certificates, bank books, land titles, art works, jewellery etc and to see any valuation of these assets; and
• a copy of the will.
• If beneficiaries request copies of these documents, they must be prepared to pay any costs associated with the estate providing this information.

Beneficiaries who have particular wishes in relation to funeral arrangements should consult with the executor to establish whether there are any specific funeral directions in the deceased's will.

A gift of income-earning property, such as rented land or shares, carries with it the income earned from the date of death.
The beneficiaries will also have to bear all costs of maintaining the asset after the date of death.

The estate must pay interest on a cash gift to a beneficiary commencing one year after death. Your lawyer will be able to advise you of the rate of interest.

Contesting a will
A will can be contested or challenged when it is alleged:

• the will was incorrectly executed or was tampered with;
• the will was executed under pressure from others or the will maker was incapable of making a will;
• the meaning of the will is unclear; or
• insufficient provision has been made in the will for a spouse, children or other people the will maker had an obligation to provide for (Testator's Family Maintenance applications (TFM)).

Under TFM laws, any person can apply for a share or an increased share in an estate if they can show the deceased had a responsibility to make provision for them in the will and did not
do so. An applicant need not be related to the deceased. Potential applicants include domestic partners, stepchildren and people who cared for the deceased. Applications must be commenced within six months of probate being granted.
Challenging a will is complicated, expensive and time consuming. Legal advice should always be sought before doing so. Your lawyer can advise on the best ways to avoid future challenges to your will.

Costs
Managing an estate brings with it different sources of costs.

Income tax: This will be payable on income earned by the estate until all the assets have been distributed.
Legal fees: Lawyers' costs for assisting the executor are set by a scale and will depend on the size of the estate. Your lawyer will advise you of this scale.

Executor's commission: An executor is entitled to claim all costs and expenses incurred in administering the estate. The executor can also apply to the Supreme Court for an executor's commission of up to 5% of the value of the estate if the administration is particularly complex and time consuming.

Trustee companies: Trustee companies are entitled to charge a commission of up to 5.5% of the total value of the estate for administering the estate. They can charge up to 6.6% on all income received by the estate.

Some small estates may be administered by the Small Estates Office for a small fee. Small estates do not exceed $25,000 where the beneficiaries are not the spouse, children
or sole surviving parent or $50,000 where they are.
Phone (03) 9603 9296 for more information.

What a lawyer can do for you
A lawyer can give you an unbiased and objective opinion on how you should go about disposing of your estate. Consulting a lawyer ensures your will is properly drawn up and correctly signed and witnessed. Your lawyer can:

• ensure compliance with legal requirements so your will is properly drawn up, correctly signed and witnessed;
• ensure beneficiaries are provided for, for example through the creation of a trust;
• ensure your wishes are clearly expressed in the will and the will suits your situation and circumstances;
• advise on whether a current or old will should be changed to reflect new circumstances;
• advise on what circumstances your will could be contested and
• how you can prevent or reduce the chances of this occurring;
• advise on whether you can make a claim from an estate and the likelihood of success;
• pursue a claim on your behalf;
• advise on the role of an administrator;
• represent your interests in relation to any court matter;
• advise executors on their obligations under a will and pursuant to the law;
• advise on what happens where there is no executor; and
• provide advice where there appears to be an ambiguity in a will.

Arrange a consultation with an experienced solicitor.

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