Wills & Estates
We have a proven track record of helping hundreds of clients with their Wills, Estate Planning Administration of Estates (i.e. Grants of Probate) and Estate Litigation. Our Lawyers assist individuals and families across all areas of Melbourne and Eastern Suburbs including Ringwood, Croydon and Lilydale.
We advise and represent clients across many areas of Wills and Estates Law including:
- Preparation of Wills & Estate Planning.
The importance of making sure that your affairs are in order has never been more important. Whether you wish to make sure that your personal and/or business interests are properly structured if the unthinkable were to happen, or you just want to make sure that your final wishes are made clear, we can help to provide you with peace of mind.
- Estates disputes including Part IV claims executor disputes and intestacy.
If you’ve been left out of a Will and wish to pursue your possible rights, or you want to make sure that you receive what has been left to you, we can also help you to navigate those types of situations.
- Probate and administration of deceased estates.
If your loved one has passed and you need assistance to administer their Estate pursuant to the terms of their Final Will, we can help to guide you with minimal fuss and clear advice.
If a valid Will hasn’t been left, there are still options available such as an Application for Letters of Administration. We can provide you with necessary advice where there is no Will or doubts exist in relation to validity of an existing Will.
If you need our assistance, please feel free to contact us for confidential discussion today.
What do I need to know?
Listed below are a selection of the main questions that in our experience, clients initially want to know, before they decide which lawyers they want to contact, let alone not only when they contact us. This content does not constitute advice and you should contact us if you wish to obtain specific advice about your matter. We are always updating our blog post so please feel free to also check out those materials.
Why do I need a Will?
Making a valid Will is the best way to ensure that your wishes are carried out after your death and to the best extent possible, to avoid unnecessary complications for your grieving loved ones. A Will can allow you to leave specific items to family members (some examples by our clients include their Star Wars collection, trading card collection and even a rock collection!), appoint a person or people that you trust to care for any minor children and to direct how you want your residuary estate to be distributed. You can also appoint the person(s) you trust to administer your estate as your executor and if you prefer, a professional such as a lawyer or accountant.
When people die without having executed a valid Will, they are at risk of having their estate distributed in accordance with laws of intestacy (in short, the laws detail a structure of cascading beneficiaries such as spouses, children, etc). Their estate may also then be managed and distributed by someone appointed by the Court such as a professional Trustee, who they may have never met.
What’s a Death Benefit Nomination?
Many of our clients do not realise that their superannuation interests do not form part of their estate. It is important that you have arranged and executed Binding Death Nominations to ensure that your superannuation Trustee follows your wishes, which may include paying the benefit into your estate (to your Legal Personal Representative) or to your spouse. It is important though that you speak to your accountant about any taxation consequences before deciding to ensure it suits your circumstances.
What types of Grants of Representation are there?
There are two main Grants of Representation available in Victoria depending on the circumstances of an Estate.
When an individual dies with a valid Will, a Grant of Probate (or now known as a Grant of Representation) can be obtained by the nominated executor. This involves formulating and then lodging an Application for Probate with the Supreme Court of Victoria, which is now for the most part, done online. If granted, the executor will receive a sealed Grant of Representation from the Court and may then attend to administering the Estate pursuant to the terms of the proven Will. You will need to obtain a Grant of Probate where the Estate assets exceed $50,000.
If a person dies without a valid will (or only a copy of a valid will can be found), an Application for Letters of Administration can be made to the Court. The application is usually made by a person who is related to the deceased and/or may have an interest in the Estate. If granted, the administrator will receive a sealed Grant of Representation from the Court and may then attend to administering the Estate pursuant to the laws of intestacy. This type of Application can also be made when executors nominated in a valid Will do not wish to act but someone else is prepared to accept an appointment as administrator of the Estate.
I’ve been left out of the Will, can I do anything?
The short answer is yes; but it is subject to you meeting certain criteria to enable you to pursue a claim for further provision from estate, whether you have received no provision, or not enough. This type of claim is what is known as a “Part IV” claim or a Testators Family Maintenance (TFM) claim.
To be successful with this type of claim, a person will usually need to show that their financial resources warrant the amount of provision sought from the Estate. This includes proving their financial needs and earning capacity to help the Court to decide whether they lack sufficient funds/assets to provide for their proper maintenance and support.
If this is shown to be lacking, they may be entitled to provision from the Estate (if excluded) or greater provision where they are already entitled to benefit. The Court though must be satisfied that the deceased also had a moral duty to make adequate provision for them and they have failed to do so.
Some of the other factors taken into consideration by the Court may also include the nature and length of the relationship with the deceased person, the composition of the estate, any benefits they may have received from the deceased during their lifetime and any contributions made by them for the benefit of the deceased person.
It is important to know once Probate of any form has been granted, a claimant only has 6 months after the date of the grant to pursue their claim. If they fail to do so within the legislated time frame, they will need to seek leave from the Court and explain the delay. It is therefore important that you seek advice from us at the earliest opportunity as each case is different!
How much will my matter cost me?
The legal fees incurred by our clients when administering an Estate almost always depend on several common factors including the complexity of the Estate’s Will and/or corpus and whether there are warring beneficiaries. The reasonable costs of administering the Estate are paid by the Estate.
As to Wills, again our fees will be dependant upon the complexity of the contents of your Will and the level of Estate Planning you require. For instance, a testamentary trust Will costs more than basic Wills between spouses.
Prior to us commencing to assist you, we take the time to understand your circumstances and will provide you with an initial estimate of what we think the costs of your matter may be. We also provide our clients with detailed Disclosure Statements as required by law, so you have a clear picture of the work required, and an estimate of the associated costs. You can also be reassured that we will not start work on your matter until you have told us that you are satisfied with and accept our costs estimate.