Friday, 10th September 2010
A Will is a written document that sets out your wishes for the distribution of your property (sometimes called your 'estate') when you die. It looks after your family and it is your opportunity to make sure things go smoothly on your death.
There are strict legal formalities to be complied with in making a Will. If these are not complied with then this creates many difficulties on your death and the risk that the paper that you signed will not be accepted as your Will.
Typical components of a Will include:
A Will is automatically cancelled on marriage and automatically altered (but not cancelled) on divorce (in Vic). You should review your Will when there are major changes in the circumstances of your life. It is a good idea to review all Wills every 5 years anyway as many things change in your life over that period.
If you die without a valid Will your property is distributed to your family according to legislation. These are commonly called the Intestacy Rules. It is rare that those rules are anything like what most people write in their own Wills.
As you have not named the Executor and Trustee, there are further Rules to determine who should be appointed. Many people (mistakenly) assume that the Administrator can only be State Trustees. The process of dealing with the estate is more complicated. Children get their inheritance at 18 years of age - whilst most Wills stipulate an older age.
Information on Organ Donation and how to register, including on-line registration.
The most common ground of dispute about an Estate is under the Administration and Probate Act.
The Court may order that provision is to be made of the Estate for the "proper maintenance of support of a person for whom the deceased responsibility to make provision".
This is a difficult area of the Law and it is best to see a lawyer who does a lot of this work.
There are strict time limits for making an application and you should see your lawyer as soon as possible. Many such disputes, if handled quickly and sensitively, are resolved by discussion, negotiation or mediation rather than by litigation.
Please give us feedback about your experiences using Foolkit and ideas for improvements.
Lawyers will often look at Wills in the broader context of your general affairs.
Do you have a Family Trust or an interest in a Family Business? What is going to happen to this when you die? Will other family members be able to carry on the business?
Where outsiders are involved in your business - is there any understanding about what is to happen should you or they die or become incapacitated? Is that documented? How is it funded?
Have the tax implications been considered? Sometimes it is better to move some events forward so that the tax consequences or benefits can occur in your lifetime.
Another issue is whether your superannuation is likely to be paid to your Estate or who the Trustees of your superannuation fund are likely to pay the death benefit to.
Lawyers do not recommend that anyone uses a Will Kit.
They are very expensive ink and paper. Lawyers do not charge for ink and paper. They charge for their advice, their skill after many years of experience of writing trouble free Wills and making sure that everything is right.
Will Kits make a lot of money for lawyers as there are so many problems with home-made Wills after people die.
If you die leaving a Will and substantial assets, then it is likely that it will be necessary to register your Will with the Probate Office. That procedure is known as obtaining Probate. If your assets are smaller and don't involve land, it may be possible for the Executor to gather together your Estate and distribute it without having to go through that process.
Administration is a similar process with the Probate Office for an Estate with substantial assets or land but no Will.
In Victoria Lawyers, State Trustee and private trustee companies do this type of work and private individuals do not often try and tackle it on their own.
Refer to our general list of resources, and also The Law Handbook (Vic) - Aged Care.
General Information is available from:
Most people sign what is known as an Enduring Power of Attorney.
With this document you empower one or more people to sign your name to and conduct all your legal and business affairs. Unless you impose any limits on this, that authority starts immediately and continues until you die. It continues even when you may be incapacitated physically or mentally, such as by a stroke or by senility. A General Power of Attorney does not work in those circumstances.
It is a very serious matter to appoint a Power of Attorney. You should seek advice on this and consider the many options available to you before choosing who you appoint and on what terms.
An enduring power of attorney (medical treatment) is a legal document where you appoint someone to make medical decisions for you. These may include agreeing to medication, surgery, and other medical procedures.
Enduring means it continues (endures) when you are unable to make these types of decisions for yourself.
Enduring Power of Guardianship lets you choose someone who can make lifestyle decisions for you.
When a person with a mental incapacity can no longer make decisions in certain areas of life, the Victorian Civil and Administrative Tribunal can be requested to make an order appointing somebody else to do this on that person's behalf.
The causes of mental incapacity can include dementia, intellectual disability, brain damage, mental illness, coma or being in a moribund state, and this must affect the person's ability to make his or her own decisions.
The main orders the Board can make concern their guardianship, care, treatment, detention and control of their financial and legal decisions.
