FAQ
Why make a Will?
A Will is the legal document that sets out the distribution of your assets upon your death. Careful drafting by our team will ensure that your new Will is legally valid, that it accurately reflects your wishes and it appoints someone appropriate to manage your financial affairs (known as an executor).
What happens if you die without a Will?
If you die without a Will it is referred to as dying intestate. If you die intestate, then the laws of the state or territory where you live determine who receives your estate. If you have a partner, your personal effects will usually go to them. If you have children that are not the children of your partner, then they may receive some of your estate as well as your partner. If you do not have a partner or children, then your estate is distributed to other relatives.
When should I change my will?
People’s lives change. Divorces and separations occur. Children grow up, get married and hopefully become more responsible. People can also lose touch (or become estranged) from beneficiaries listed in their Wills. Executors and beneficiaries can pass away. A regular review of your Will ensures that these changes in your life are addressed.
A Will can be changed at any time to reflect the new events that occur in everyone’s lives. Your new Will immediately ‘revokes’ (cancels) your previous Will once it is signed by you in front of two witnesses.
If you get married then the Will drawn up prior to your wedding may become invalid. If you get divorced then the gifts you make to your ex-spouse will be revoked. So too, will their appointment as executor.
How to review your Will
Call Clohesy Legal on 0417 342 972 and advise Michael that you would like to review (or create) your Will.
We prefer to take Will instructions from you in person. We regularly make home visits to the elderly and families with young children.
Before we meet to plan your Will you need to think about the following issues:
- Who will look after your young children if you and your spouse both pass away? And where will the kids live?
- Who will look after your children’s financial affairs should you and your spouse both pass away?
- Would you want your children to receive their entire inheritance at age 18?
- If your entire family were to pass away (such as in a car accident) who would get the estate?
Testamentary Trust Wills
At Clohesy Legal we can draft a complex Will (known as a ‘Testamentary Trust’) that is designed to minimise or defer the amount of tax payable by your deceased estate.
What is a Power of Attorney?
By way of simple explanation, a Will is for dead people but a Power of Attorney is for the living.
Incapacity can strike suddenly at any stage of life. An accident or illness may make everyday routines such as paying bills, managing a budget and making financial decisions difficult, stressful and, in some cases, impossible.
The simple solution is to appoint someone you trust to look after your financial and medical affairs and act on your behalf if necessary. You can do this by appointing them your ‘Power of Attorney’. A prerequisite however is that you must have all your mental faculties (known as ‘mental capacity’) when you sign the documents.
What happens if you don’t have a Power of Attorney?
If you don’t have an Power of Attorney then, in the event of your mental incapacity, someone will need to be selected to manage your affairs. It may be necessary to apply to VCAT (Victorian Civil Administration Tribunal) on your behalf for someone to be appointed to look after your affairs.
This process is lengthy, expensive and VCAT may appoint someone other than the person you would have chosen. If there is a dispute over who will be your Attorney then VCAT may appoint someone from the government to do the job.
If you make an Power of Attorney you can ensure that the person given the role of taking care of your financial and medical affairs is someone you want.
If you would like to know more about the three main types of Powers of Attorney in Victoria please download the following fact sheets:
Download an Enduring Power of Attorney – Medical information sheet (PDF 4MB) ⟫
Download an Enduring Power of Attorney – Financial information sheet (PDF 12MB) ⟫
Download an Enduring Power of Attorney – Personal information sheet (PDF 9MB) ⟫
What is Probate/Letters of Administration?
When a person passes away, the Supreme Court of Victoria must satisfy itself that that the deceased person’s Will is valid. The Supreme Court also needs ascertain that the Executor nominated in the Will has the authority to deal with the deceased’s assets. This approval process known as ‘applying for a Grant of Probate’. The Supreme Court will also seek assurances that the Will is in fact the last valid Will in existence.
Where the deceased dies without making a Will the Supreme Court will appoint an ‘Administrator’ to carry out the duties of an Executor. The Administrator selected is usually the major beneficiary of the deceased’s estate. The appointment of the Administrator is known as ‘Letters of Administration’.
Clohesy Legal is experienced in preparing applications for a Grant of Probate or a Grant of Letters of Administration. We pride ourselves on an ability to get the job done quickly, cheaply and sensitively.
What is an Executor?
The Executor’s task begins immediately upon the death of the Willmaker. Clohesy Legal is experienced in advising and assisting Executors carry out their role.
The Executor’s jobs include:
- Arranging the funeral.
- Notifying banks, insurance companies and other financial institutions of the death.
- Applying to the Supreme Court for a Grant of Probate (or Letters of Administration).
- Selling valuable assets, such as real estate or shares.
- Identifying all beneficiaries in the Will and distributing their entitlements.
- Winding up the estate. This includes paying outstanding debts and resolving financial disputes.
- Investing funds on behalf of any children nominated in the Will.
Will Disputes
The contents of any Will can be disputed (challenged ) in court. Important time limits apply so call Clohesy Legal immediately if you wish to challenge a Will.
If the Court agrees that someone has been unfairly treated by a deceased Willmaker it has the power to rewrite the terms of the Will.
Will disputes can arise if a vulnerable person has been manipulated or pressured into changing their Will.
Sometimes a Will contains drafting errors or mistakes.
How can you avoid a dispute?
The best way to avoid a dispute is to have your Will drafted by a lawyer.
The Will should clearly state your intentions and it needs to be reviewed regularly to ensure that it remains valid. It may also be a good idea to communicate the contents of your Will with the beneficiaries.
When we prepare a Will for you, we can advise you on how to minimise the possibility of your Will being challenged.
When are Wills normally challenged?
Wills can be challenged by a spouse or children who feel that they were not properly provided for in a deceased person’s Will.
Occasionally Wills are challenged when it is alleged that undue pressure was applied to the deceased Willmaker or that they did not have the mental capacity to make the Will when they did.
What happens when Wills are challenged?
The first step is to get a copy of the Will and to make an assessment about the likelihood of the claim being successful.
We try to resolve Will disputes quickly and cost effectively. If however parties can’t reach agreement then we take the matter to Court to be resolved.
When must a claim be made?
A claim must usually be made:
- within 6 months of date of Grant of Probate (or Letters of Administration) being granted (Victoria, South Australia, Western Australia)
- within 3 months of date of Grant of Probate (or Letters of Administration) being granted (Tasmania)
- within 12 months of date of Grant of Probate (or Letters of Administration) being granted (Australian Capital Territory)
- within 6 months of date of death (Queensland)
- within 12 months of date of death (New South Wales).
We recommend that you call us as as soon as possible after the Will dispute arises.
What is a Superannuation Death benefit claim?
The process of claiming a death benefit from a Superannuation Fund can be complex. Disputes regularly occur in relation to superannuation entitlements. The issue of tax can further complicate matters.
Clohesy Legal is experienced in dealing with all facets of Superannuation Death Benefit claims.
Where Can I store my Will?
It is strongly recommended that you place your Will in a fire proof safety deposit box. You also need to advise your executors of the location of the Will.