Frequently Asked Questions
For your convenience, we have set out some frequently asked questions about common wills and estates matters below:
- Who will be your Executors?
- Who will be your beneficiaries and what effect will their inheritance have on their circumstances?
- How do you know a Will is valid?
- How often should I review my Will?
- Will Executor Duties
- Do Executors get paid?
- What is Probate?
- What if I’m not up to the job?
- We can help
Things you need to consider when making a Will
Who will be your Executors?
Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes as outlined in the Will are upheld.
Who will be your beneficiaries and what effect will their inheritance have on their circumstances?
You can designate anyone as a beneficiary and distribute your assets in any way you like, however if you do not provide for your family and dependents, your Will can be contested, and your hard-won assets used on litigation fees.
You also should consider the effects that an inheritance may have on your beneficiaries. In some cases, a testamentary trust can sidestep potential taxation problems, so it’s important that you get specific advice about your situation.
How do you know a Will is valid?
To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed, and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries, or related to beneficiaries and must be over 18.
If there is any doubt, or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your Will.
How often should I review my Will?
You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, death of a beneficiary or if your assets change significantly. We also recommend that you take a look at your Will every couple of years just to make sure that it is still the best instrument for you and for your family.
Will Executor Duties
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they have outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.
An executor’s duties may include:
- Organising the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting monies belonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Do Executors get paid?
It depends. If you are a beneficiary of the Will it is presumed that your benefit will cover your costs. If you are not a beneficiary then you can apply to the Supreme Court for commission.
Do I need a Lawyer as Executor?
Estates vary in complexity and Executor’s duties can be complicated, so it’s often a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.
What is Probate?
Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
What if there is no Will?
If someone passes away without a valid Will, this situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.
What if I’m not up to the job?
Just because you have been named an Executor does not mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility (revoking your executorship) is final.