Estate & Wealth Planning
Wills & Probate
Having a Will is important as it ensures your wishes are complied with after you pass away. Not having a properly prepared and executed Will may result in legal disputes in relation to the management and distribution of your assets.
A common problem occurs when people mistakenly believe that their Will is valid when in fact they are not. It is crucial that you received proper advice from an experienced lawyer and that your Will is prepared in way that it can stand up against potential challenges.
There is nothing worse than trying to manage a contested Will or intestate estate whilst grieving.
At McDonald Legal we will give you piece of mind that your affairs will be handed as you want them to be and will even hold your Will for safe keeping and will assist your executors with probate.
Grant of Probate
A Grant of Probate is the Order that is made by the Supreme Court, which confirms that the Will that is relied upon is the last Will of the deceased, and that the person(s) nominated as the Executor(s) of that last Will has satisfied the Court that he/she/they are the persons to whom the Court should grant such an Order.
The nominated Executor(s) ‘prove’ to the Court that they are the persons entitled, and hence they will be granted “Probate”.
The Court Rules require that an Application for a Grant of Probate (and/or Letters of Administration) should be made within six (6) months of the Testators death. If the Application is not made within that period, an explanation of the reasons for the delay will have to be given in the form of an Affidavit.
Drafting a Will
Having a valid will in place is the best way to ensure that your estate is taken care of in accordance with your intentions. A legal Will is a simple document which sets out who will be responsible for administering your estate and who the beneficiaries of your estate are eventually going to be.
An estate is divided up according to the ‘rules of intestacy if there is no will in place when a person passes away. This means the deceased has no control over who their assets go to.
Our Wills and Estates Lawyers are experts in their field, We prepare wills with utmost care and skill, to ensure our client’s intentions are clearly reflected in a binding legal document.
A legal Will should be reviewed whenever you:
- enter into a new relationship;
- separate or divorce;
- have children;
- acquire or dispose of substantial assets.
Letters Of Administration Upon Intestacy
When a deceased dies and he/she has not left a Will, he or she dies “intestate”, and his or her estate passes to the next of kin in accordance with the rules of intestacy as set out in the Succession Act 2006 (the “Act”). This also happens if a deceased leaves a Will which only distributes part of the his/her estate (i.e. where the deceased dies “partially intestate”).
In those circumstances, where a person dies intestate, the Court will appoint an Administrator to carry out the administration of the Estate, and the Court order is then known as “Letters of Administration”. (If a Will validly appoints an Executor but there is still a partial intestacy, Probate will be granted to the Executor with the partial intestacy then being dealt with in accordance with the intestacy rules.)
Letters of Administration are also required if a sole Executor renounces his or her appointment or dies before completing the realisation and distribution of the estate
Claims can be made for further provision from estates if relatives or loved ones believe that insufficient provision has been made for them.
To make a successful family provision claim in Victoria under that state’s Administration and Probate Act, a person must have had either a blood or a close relationship with the deceased person and have received inadequate or no provision from the estate.
Time Limits and Courts
- Claims must be brought within 6 months of obtaining the grant of probate (where the deceased person left a will) or letters of administration (where no will had been left).
- The court may give an extension of time so long as the estate has not been completely administered.
- An application can be made in either the County Court or the Supreme Court of Victoria, but cannot be brought in the Magistrates Court or in VCAT.
Obligations of the Willmaker
The willmaker must make provision for any person for whom he or she had a responsibility to provide for. De facto spouses and same-sex partners (now collectively called “domestic partners”) may claim if insufficient provision has been made. “Domestic partnership” includes relationships such as siblings who live together for a long time in a mutually supportive relationship.
Will a Claim for Further Provision Succeed?
The court applies the test – did the deceased person have a moral responsibility, and fail to observe their legal obligation to make adequate provision for the claimant? The claimant must have an economic need for support. The court will likely view claims by close family members more favourably than claims by less close family members.
Principles Used by the Court When Considering Claims
- the net value of the estate, that is, its size after debts, funeral, testamentary, and other liabilities have been deducted. If the estate is not big enough to be capable of redistribution, the action cannot succeed
- the age, sex, and health of the applicant
- if the applicant received any gift, transfer, or other provision made by the deceased during their life
- how close the relationship was between the applicant and the deceased person
- the financial resources of the applicant. An applicant will be entitled to provision only if an economic need for provision can be shown.
- the character and conduct of the applicant
The court has power to refuse applications if applicants’ conduct towards the willmaker was unsatisfactory.