Wills


Without a Will the Court will have to decide who receives an estate and this can be expensive and time consuming for beneficiaries.

 Wills should be reviewed every few years or when circumstances change to ensure that they cover any changes that may have occurred since the last Will.

Erina Legal can assist with organising Wills by telephone and email. 

 It is also possible to have your Will completed at an agreed location if it is not possible to attend the office or use email.

 Information that you need to provide is as follows.

 Executor and Trustee:  
  • This can be a husband/wife or de facto partner or someone else who agrees to be Executor (also called) Trustee.
  • The full legal name of the Executor or Executors - preferably in the same State as where the assets are mainly located.
  • A solicitor in the same State as your assets will usually apply to the Supreme Court for Probate unless the Estate is left to a surviving husband/wife or de facto partner.
  • The Executor needs to agree to their appointment.
  • It is a good idea to appoint an alternate Executor in case the first person can't do it at the time for some reason.
  • If the beneficiary is the husband/wife or de facto partner no probate application is required unless the deceased had property in the deceased's name only when Probate is necessary to transfer the property to the name of the beneficiary, even if this is the husband/wife or de facto partner.
  • There is also a need to have joint assets changed to the name of the surviving husband/wife or de facto partner whether or not Probate is necessary. 

 Special Gifts:  
  • If there are special belongings to be left to specific people, the full names of such people and a description of the belongings are necessary for easy identification.  

 Husband/Wife/De Facto Partner:  
  • The full legal name of the husband, wife or de facto partner is needed. 
  • If there is more than one de facto partner they may each have a claim. Someone can be a de facto partner whether or not they are living separately and can be in addition to a husband/wife or even another de facto partner.  This should be discussed when making the Will.
  • All assets (except any that are named as special gifts) can be left to a husband/ wife, or de facto partner if there are no others.  
  • The family home can be left to a husband/wife or de facto partner until that person dies, remarries or sells the house (called life estate) when it can then be divided amongst other people such as children.  This may happen if there has been a previous marriage when there are children of the previous marriage who may have a claim on the home at some time.  Possible claims should be discussed when making the Will.

 CHILDREN:
  •  If the husband/wife or de facto partner dies first, or dies at the same time, it is necessary for that share of the estate to pass to others, and necessary to name them in the Will.  Otherwise the Court will decide.
  • Most people leave the estate to their children provided that the children survive them if there is no living husband/wife or de facto partner at the time of death.  Children may have a claim if they are not provided for in such cases. If there is a reason for not including any child, the reason should be stated in the Will.
  • If there are no children, other people or gifts to charities may be named.
  • If any of the children die before or at the same time, that child's share needs to be given to someone else, usually to the children of that child, or if there are no children of the child, then to the child's sisters or brothers.
  •  If any of the children or grandchildren are under 18, a Trustee and Guardian needs to be appointed to care and provide for them from whatever of your assets you leave to that child or grandchild.  Specific instructions as to how any such assets are to be managed should be included in the Will.  
  • The age that any children or grandchildren should receive their share of the assets without the need for a Trustee or Guardian should be included in the Will.
  • The full legal names of all beneficiaries, Trustees and Guardians should be provided.

FAMILY BUSINESS
  • Details of what should happen to the family business (if applicable) should be included in the Will.
  • Sometimes this is stated in a partnership or company legally binding agreement or Deed.

SUPERANNUATION
  • Superannuation is under different legislation and is managed by your superannuation fund.  The names of beneficiaries of the superannuation should be provided to the superannuation fund.  However this can also be referred to in the Will. 
  • If there are changes in who should receive the superannuation, the superannuation fund should be notified.  Otherwise, the wrong person or people may receive the fund. 

DIVORSE AND REMARRIAGE OR NEW DE FACTO RELATIONSHIP
  • Existing Wills should be changed if there is a divorce.  Otherwise the Court may have to decide who is to receive the estate.
  • I thet is possible for ex-husband/wife or ex-de facto partner to continue to benefit from the Will  but this needs to be stated in a new Will as that part of the previous Will would automatically no longer apply.  
  • It is advisable to have a legally binding Financial Agreement made together with a new Will if there is remarriage or a new de facto relationship. This makes it easy to identify what assets from a former marriage could be claimed by children of the former marriage.  There could be a lot of conflict in the family if this has not been done.

 INTESTATE ESTATES
If someone dies and has not left a Will, their estate is called intestate.  This causes significant complications and expense and the Court makes the decision as to where the assets should go. Everyone should make a Will no matter how small the estate.

 If all assets (property, bank accounts, investments etc)  and liabilities are in joint names with a husband/wife or de facto partner there is no need for probate to be applied for, only providing a copy of the Will and death certificate to appropriate people, and a Notice of Death to transfer the property to the spouse only.  However, if there are any assets held in the name of the deceased only then an application must be made for probate.

CLAIMS AGAINST A WILL
  • There are some people who may be able to make a claim to the Supreme Court for a share of your estate when you die, if you do not provide for them in your Will.  This should be discussed when making a Will.  If it happens, it will cost the Estate a lot of money to have the Court decide.

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