Wills and Estates FAQ

What does an Executor do?

An executor is one or more persons who you have appointed to carry your will into effect. An executor is required to carry out duties such as collecting all the assets and having them valued, pay any outstanding debts, arrange tax returns, arrange the funeral, apply for a grant of probate and distribute the estate according to the Will.

An executor must be over 18 at the time they apply for probate, if probate is required.

What happens if someone dies without a Will?

If there is no will, the law decides how your estate is distributed. This is called dying ‘intestate’. If there is no valid will an application must be made for ‘letters of administration’. This will allow the nominated person in the letters of administration to act similar to an executor, with authority to distribute the estate. However this distribution must be in accordance with the law and may not necessarily be as you wish. It is an expense that can easily be avoided by taking the time to draft a valid will.

How do I change or cancel my Will?

It is important to update your will frequently to avoid any future problems. You can change your will as often as your like. We recommend updating your will every three or so years, or as a major events occur in your life.

In addition, you will be required to make a new will if you:

  • Marry or remarry as marriage revokes any pre-existing will;
  • Divorce or separate;
  • Purchase a significant asset/investment; or
  • Get involved in a new business, company or trust.

Can my Will be challenged?

It is possible for others to challenge your will after you die in circumstances where it appears that:

  • You did not have testamentary capacity to make a will at the time of signing;
  • You were coerced, influenced or intimidated into making the will;
  • Your financial dependent, or a person who you have a ‘responsibility’ to provide for, believes that you have not adequately provided for them fairly in distributing your assets. Where a person does not sufficiently provide for their dependents, they may make a testator’s family maintenance claim and challenge the will. In determining the application, the court will consider the applicant’s personal circumstances, size of the estate and the applicant’s relationship with the Will maker.

There is a six month window after attaining probate or letters of administration, in which a claim made be made on your estate.

It is important that if you are concerned someone may challenge your will after you pass away, or if you are seeking to challenge a will that you obtain legal advice as soon as possible. Contact our office to make an appointment today.

Powers of Attorney and Guardianship

Powers of attorney and guardianship are commonly referred to as ‘living wills’, documents that allow decisions to be made that take into account your wishes, if you are not able to make such decisions for yourself any longer. Although you can nominate whenever you want your attorney’s power will commence, it is common for people to elect that the power commences when they have lost the capacity themselves to make decisions, because of a serious car accident or dementia for example. There are different types of Power’s of Attorney:

  • A general power of attorney: these types of powers usually only take effect during a prescribed period or limited time such as when someone is away on holidays. The can enable the donee to make financial or legal decisions on your behalf.
  • An enduring power of attorney: Commonly referred to as the financial power of attorney, this enables someone to make financial and legal decisions on your behalf, such as signing a legal document, selling property or doing your banking if you are unable to make these decisions in the future.
  • An enduring power of attorney – medical: This power of attorney enables someone to make medical decisions on your behalf, such as agreeing to or refusing surgery, if you are unable to make these decisions for yourself in the future. This type of attorney can be responsible for making end of life decisions, and it is important you carefully consider who you feel appropriate to make these decisions on your behalf.
  • An enduring power of guardianship: this allows you to appoint someone to make day-to-day lifestyle decisions on our behalf, such as where you live and health care issues if you are unable to make these decisions for yourself in the future.

You may appoint one or more decision maker when appointing an attorney. It is important to appoint people who you trust and are satisfied about their honesty, integrity and common sense. If you decide to appoint more than one person, you can choose whether they must act:

  • Jointly, which will require each attorney’s signature for every transaction and complete consensus; or
  • Jointly and severally, which allows each attorney to make decisions on their own as well as together. This will also mean that a transaction can be completed with one signature as opposed to requiring everyone’s signature.

What happens if I do not have a Power of Attorney?

If you do not have a Power of Attorney and you become unable to make your own decisions due to accident or illness, your family will be required to seek permission or authority from the Guardianship Board to make these decisions for you. This can result in a third party, such as the Public Trustee, being appointed to act on your behalf rather than a family member.

Administering Estates

If you have been appointed the executor of a Will, then you are responsible for carrying out the wishes of the deceased.

At Herman Bersee Solicitors we often assist executors and administrators navigate the application process for grants of probate, letters of administration, and your obligations when acting. We are also experienced in conducting the administration of the estate on an executor or administrators’ behalf to reduce the stress and streamline the process.

An executor is one or more persons who have been appointed to carry a will into effect. An executor is required to carry out duties such as collecting all the assets and having them valued, pay any outstanding debts, arrange tax returns, arrange the funeral, apply for a grant of probate and distribute the estate according to the Will.

An executor must be over 18 at the time they apply for probate, if it is required.

What is a grant of probate?

This is a fancy term for the recognition or ‘seal of approval’ you must obtain as an executor that you are authorized by the valid Will to act as executor and distribute the estate. It is the proof that you require to deal with the deceased’s assets, conduct transactions such as the sale of a property or access the deceased’s bank accounts.

Whether probate is required varies greatly depending on the particular assets and size of the deceased’s estate. It is best that you obtain detailed legal advice as to whether you require a grant of probate as soon as possible, to avoid undue delay down the track.

What if there is no Will?

If there is no will, the law decides how the estate is to be distributed. This is called dying ‘intestate’. If there is no valid will, an application must be made for ‘letters of administration’, rather than a grant of probate. This will allow the nominated person (‘administrator’) in the letters of administration to act similar to an executor, with authority to distribute the estate. However the administrator must distribute the estate accordingly to the law rather than deceased’s personal wishes.

Estate Disputes

There are three keys issues which commonly arise is disputes about estates. These are:

  • Where there are suspicions or allegations that the will does not reflect the wishes of the deceased;
  • Where a financial dependent or a person who you have a ‘responsibility’ to provide for, believes that you have not adequately provided for them fairly in distributing your assets;
  • Where there is no will and a dispute about what the deceased wanted.

Time and time again at Herman Bersee we deal with estate disputes which could have been avoided had the deceased made a valid, clear and conscise will prior to their death. This can cause a lot of stress and heartache for loved ones, who should be grieving. We therefore take the time to understand what it is you want to achieve when distributing your assets, and explain to you the options and ways in which this can best be achieved and how to best mitigate the risk that your will could be challenged.

If you wish to challenge a will, the first step is to conduct an assessment about the prospects for success of your case. The second step is to attempt to resolve the matter in a cost effective and efficient manner, usually through negotiations. However, should negotiations be unsuccessful, at Herman Bersee we have the experience to take your matter through the Court system to achieve the best result for you.

When must a claim be made?

A claim against an estate must be made within six months of probate being granted. As time is of the essence, should you wish to challenge an estate, it is important that you obtain sound, practical and efficient legal advice as soon as possible. Please call Herman Bersee Solicitors today to make an appointment.