Wills

There are a number of ways that your will can be challenged. A partner or spouse can elect to get what they would get under your will or under a division under the Property Relationships Act. Children need to be adequately provided for in your will, if they are not they can bring a claim under the Family Protection Act. If you have made a promise to provide for someone in your will and they have relied on that promise, they can make a claim if the will does not adequately provide for them under the Testamentary Promises act.

We recommend turning your attention to your will at least every 5 years, but also after any major change in your family circumstances.

If there is a will the people who have been appointed as executors distribute the assets in accordance with the will. If there are assets over a certain level, probate will be required. This means the executors will need to apply to the High Court to have the will approved. Following that the executors attend to the management of the estate in accordance with the will. Once expenses and other matters are dealt with, they distribute the assets to the beneficiaries

Enduring Powers of attorney allow you to appoint people to act on your behalf while you are living if you are not in a position to act for yourself. This can include where you have no legal capacity to make decisions. There are two types: Property: which relates to decisions about your property, including your house, bank accounts and investments; Personal Care and Welfare: which relates to decisions about your care and welfare for example where you live and what medical treatments you undergo. This one only comes into effect if you do not have capacity to make those decisions yourself.

It is important to appoint someone to act for you as if you have not, and decisions need to be made, an applications needs to be made to the Family Court to appoint someone. This can be expensive and time

An executor is a person, you appoint in your will to stands in for you after you have died.. They deal with the legal transfer of your assets to the people you specified in your will. They may hold those assets for some time if children need to reach a certain age to inherit. If your will is challenged, they (with advice) decide how to defend that challenge.

If your assets are over a certain level ($15,000) probate is needed. This involves an application to the High Court where the Court approves the will and your appointment of executors. The Court needs to be satisfied of a number of things including the person has died, the will is their last will and the people applying are the same people referred to in the will. If you are an executor you will need to swear an affidavit confirming these things. When the court is satisfied all of the necessary proof is with the application, it will grant probate. Probate is an order approving the will

If you don’t have a will when you die and your assets are valued at $15,000 or more, your assets are distributed in accordance with the Administration Act. Your assets are first used to pay any expenses including funeral and legal costs. How the balance is distributed depends on your circumstances. For example if you have a husband, wife, civil union partner or de facto partner and children, your partner gets your chattels, the first $155,000 and 1/3 of the remainder. The balance 2/3rds is divided equally between your children. It is important to have a will to ensure that, what you want to happen with your assets does.

If you don’t have a will then the Administration Act sets out who will act as your administrator (like executor). Depending on your circumstances that could be your spouse or children or parents. That person applies to the court to be appointed an administrator and, if the court is satisfied, it will grant Letters of Administration to that person(s). They are then obliged to distribute all your assets in accordance