Questions you need to ask yourself

As you get older, have you asked yourself the following questions:

  • How do you want your assets to be distributed after your death?
  • Who will be responsible for distributing my assets and carrying out my wishes?
  • What will happen if the will is contested by someone who was left out of it?

If, so you should consider making a Will, if you have not done so already.

What is a Will

A Will is a legal document in which you leave instructions to the Executor of the Will, on how your estate should be distributed when you die.

You choose and name the executor, whose duty is to administer the estate which you will have left.

The executor’s duties will typically include:

  • Looking after the assets of the estate, e.g. making sure the home or car of the person who died is maintained, or managing the deceased’s bank accounts until they are realised (i.e. turned into money) or transferred to the beneficiaries
  • Paying the estate’s debts, e.g. using the money in the estate to pay the deceased person’s last phone bill, funeral expenses, taxes, and mortgage payments
  • Distributing the assets of the estate in accordance with the will, e.g. organising to transfer ownership of the person’s house to the appropriate beneficiary

It is also the executor’s job in most estate matters to obtain a grant of probate from the court.

Probate

If you died having made a will, the executor will have to apply to the Supreme Court for a grant of probate, before the executor can distribute your estate according to the Will and the law. Probate is a court order saying that the will is valid and that the executor has the right to administer the estate. The whole process of administering an estate commonly takes at least a year.

 

You may choose to have one person act both executor and trustee, but the functions of each are different. A trustee’s duties do not normally commence until the executor’s duties (e.g. identification and/or realisation of assets and payment of debts, funeral and testamentary expenses) are complete. Sometimes the executor of a will is also a beneficiary under the will. Beneficiaries who are not executors have no power to make decisions about the estate.  

 

Sometimes, the Supreme Court may refuse to grant probate. If this happens you will be treated as if though you did not make a Will. If there is a problem in getting probate because the Will has not been properly executed, time and money needs to be spent to prove that the Will reflects the testator’s intentions. Again, the legal fees will be paid for by the estate which will mean there is ultimately less for loved ones to inherit. It is important to get things right first up.

 

If the Court refuses to grant probate, the deceased person may be declared intestate, meaning they have died without a will. A different set of rules will then be used to divide up the estate and the person’s intentions and wishes may be ignored. Dying without a will is often the source of hurtful divisions amongst family members of the deceased.

OUR ROLE AND SERVICES IN THE PREPARATION OF A WILL

If you instruct us to make a will, we shall:

  • Compile a list of all your assets
  • Compile a list of your intended beneficiaries
  • Take your instructions on how your estate should be distributed
  • Obtain details from you about your executor(s)
  • Prepare a will which accords with the law and your wishes

OUR ROLE IN RELATION TO THE ESTATE

When dealing with estates, the lawyer’s client is the executor. The lawyer’s professional duty is to help the executor to carry out his or her duties to the estate in accordance with the law and the will.

Often an executor will need a lawyer’s help to administer the estate. For example, a lawyer might:

  • prepare and apply for probate
  • identify and collect the deceased’s assets
  • advise the executor about the deceased person’s tax liability
  • advise the executor about the legal order in which debts are payable and the remaining assets distributed.

WHAT IF THE DECEASED DID NOT LEAVE A WILL?

If the deceased has not left a will, one of the people entitled to a share in the estate applies for Letters of Administration. The estate is administered under the law relating to intestacy (i.e. dying intestate, dying without a will).

When this happens, a lawyer explains the legal order for distributing the estate and the proportions of the estate of the beneficiaries’ entitlement. A lawyer can prepare a report and statement about the realisation of the assets of the estate and the distribution to the beneficiaries.

WHY US?

  • We have lawyers with vast experience in wills and probate.
  • Although you may prepare a will using a do-it-yourself kit, a will prepared by us will be compliant with the law, therefore avoid problems for your loved ones and tailor-made to suit your unique circumstances.

For further information about Wills & Probate a useful first reference is;

www.lawhandbook.sa.gov.au