Wills and Probate

The Complexity of Wills and Probate

A Will is a very important document.

It sets out clearly how you wish your property, belongings, money and other items to be divided and between whom, after you die.

It may also be used to appoint a guardian to look after children after you die.

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In situations where no Will has been drafted and no immediate family survives you, your estate may be administered by the State Government. It is therefore important that you protect your family’s interests and ensure your wishes are reflected through this document and have one drafted as soon as is practical.

Many people think they are too young for such a document, or put it off for another day, but it cannot be soon enough that you consider such a document.

There are a number of specific requirements for a Will to be valid. Among other considerations, some of the main elements for a valid Will include:

  • In the majority of cases the Will must be in writing.
  • The Testator (or person making the Will) must be of legal capacity and understand the intention and effect of the Will.
  • The Will must be signed by the Testator and any alterations initialled.
  • The Will should be signed in the presence of at least two witnesses.
  • The Will should also be signed by those witnesses.

Just as there are a number of requirements to ensure that a Will has been validly drafted, there are also a number of grounds by which a Will can be contested. People excluded from a Will who believe they have an entitlement often contest Wills, where there are claims that a Will was drafted under some pressure or influence, a Will might be contested. There are a number of grounds somebody might seek to object to a Will and its contents.

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It is important for early advice to be sought in relation to the drafting of a Will. This will ensure assets and interests are protected and distributed in a manner which was intended.

Probate and Letters of Administration

If you die without a valid Will, you are said to have died intestate. If no Will has been left and no Executor of the deceased estate appointed, a grant of Letters of Administration will be applied for with the Supreme Court. Letters of Administration allow an estate to be administered in the absence of a Will.

If a valid Will has been left, the Executor nominated in the Will is obliged to distribute assets and liabilities as nominated in the Will. The Executor will usually need to apply to the Supreme Court for a grant of Probate so that the Executor can deal with the assets and liaise with organisations such as Banks.

There are a host of other rules and considerations which can and do arise in relation to the drafting, disputing and/or administering of Wills and estates. Situations may arise where:

  • Executors die before a Will can be administered,
  • questions are raised regarding who is entitled to dispute a Will and for what reasons,
  • similarly, what is the situation and rights of creditors which may be left behind after you die; and
  • what costs are involved.

These and many other considerations can become relevant depending on the specific circumstances, the interested parties which may be left behind, the provisions of a Will, and the pool of assets left behind, if any.

 

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Entrust Us in Difficult Times and Sensitive Situations

Gavel & Page Lawyers can provide clear and meaningful advice on the drafting of a Will to reflect your intentions and ensure your family is protected and we can also assist the Executor of a Will with the numerous documents and processes to be followed in seeking the power to deal with banks and other institutions, sell property and generally deal with and distribute the assets as identified in the Will and left behind by a deceased.

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