LET’S TALK ABOUT WILLS & PROBATE
A will takes effect when you die. It can cover things like how your assets will be shared, who will look after your children if they are still young, what trusts you want established, how much money you’d like donated to charities and even instructions about your funeral.
What is a will?
A Will is a legal document with instructions for who you want to inherit your estate, care for your children, and be the executor of your estate when you pass away.
- who you want to receive your assets
- who you want to receive specific personal and heirloom items
- any religious or cultural arrangements for your funeral
- who you want as a legal guardian for any children under 18 years
- who you choose to be your executor when you pass away.
Assets not covered by a will
Only assets owned exclusively by you are covered by a Will. Examples of assets not covered by a Will include:
- Assets held by a superannuation fund, which generally go to a dependant spouse or children
- Assets owned by discretionary trusts, which do not become part of your estate as they remain the property of the trust
- Proceeds from a life insurance policy, which are paid directly to the beneficiary nominated by the insured person, and do not form part of the deceased’s estate.
- Assets owned by unit trusts or companies that are controlled by you, although the shares or units of such trusts and companies will be part of your estate.
Many of the assets that constitute an estate can be contested in a Will dispute so it’s important to get the right legal advice when preparing your Will to avoid any dispute or confusion between your beneficiaries.
Your will can be written and updated by private trustees and solicitors, who usually charge a fee. Some Public Trustees will not charge to prepare or update your will, but only if they act as the executor of your will. Other Public Trustees may only exempt you from charges if you are a pensioner or aged over 60.
Can I create my own will?
Yes. You can create your own will online but it’s a good idea to ask a solicitor to review your will to make sure everything is in order. If a will isn’t signed and witnessed properly, it will be invalid.
Keep your will valid and up to date as your legal rights change, specifically if you marry, divorce or separate; have children or grandchildren; if your spouse or beneficiaries die; or if you have a significant change in financial circumstances.
If you die intestate or your will is invalid, an administrator appointed by the court pays your bills and taxes from your assets, then distributes the remainder, based on a pre-determined formula, which may not be how you intended your assets to be distributed. If you die intestate and don’t have any living relatives, your estate is paid to the state government.
It’s a good idea to get your Will checked by a solicitor or Public Trustee to make sure it’s been done properly. If your will isn’t done properly, it will be invalid.
What is probate?
Before the estate of someone who has died can be distributed, the person or people who are going to carry out the will’s bequests must apply through court for the legal authority to do so. This is called a grant of probate. It gives one or more people the legal authority to manage the estate. There are three different types of grant of representation:
- Probate: If an executor is named in the will, they must apply for probate.
- Letters of administration: If there is no valid will, the court will grant letters of administration to an appropriate person, usually a beneficiary.
- Letters of administration with the will annexed: If there is no named executor in the will, or if the named executor wishes to renounce their role, the court will grant letters of administration with the will annexed. Usually this is granted to an appropriate beneficiary of the will.
If you have been named as the executor, you need to be granted probate before you can start managing the estate according to the will. Managing the estate includes giving out inheritance money and gifts, settling debts, and selling property.
Why is probate important?
Probate gives the Executor the legal authority to deal with the deceased assets. This includes things such as bank accounts, property or shares that need to be distributed to the beneficiaries stated in the Will.
Often there is a threshold of ‘value’ that must be reached to require probate. For example, if the deceased may have left money in a sole bank account, the bank may require a grant of probate to release the funds for distribution by the Executor. Similarly, if they owned shares, the trading platform may require probate to transfer ownership.
For smaller assets, a death certificate or Will may be sufficient, how it is crucial to check the requirements for each state and governing body.
Applying for probate
To apply for probate you must be over 18 and an executor named in the will of the person who has died.
Applications for probate will incur a fee, often of several hundred dollars, but again this can usually be reclaimed from the estate. Fees vary widely between states and can change frequently, so it is always best to check the current fee before applying for probate. It’s a good idea to apply using a probate expert to make sure it’s been done properly. Visit your state and territory’s probate registry for more information.
What happens next?
The grant of representation, proof that you have obtained probate, will be posted to you in the following weeks. The time it takes to process probate varies from state to state, but can take as long as eight weeks. Once you receive these documents, you have the legal authority to manage the estate.
When is Probate not required?
Sometimes estates can be administered ‘informally’; that is, without a grant of representation. This is sometimes possible if the sum value of the estate is quite small, or if all of the assets are held in a joint bank account. If in doubt, it is best to consult with a legal advisor.
Book a free consultation with a wills and probate expert
We understand you’ve got a lot to deal with right now – especially if you’re responsible for managing the affairs of your loved one. When the funeral is over, you may need to apply for the right to deal with your loved one’s estate: their property, money and possessions.
Let us help. We can connect you with probate and estate planning experts to help you organise your estate and create the legal documents to protect you and your loved ones should you fall ill or pass away unexpectedly.
eziFunerals supports individuals and families cope with end of life decisions, death and funerals. We are an independent, Australian-owned and operated company. We are not part of any other funeral company.
Our member Funeral Directors are chosen for their knowledge, quality, service, personalisation and experience. They go above and beyond, and will take the time to support the family.
For more information or to make contact with a trusted Independent funeral director, call eziFunerals on 1300 236 402 or visit www.ezifunerals.com.au.