FREQUENTLY ASKED QUESTIONS
Our Probate, Wills and Estate lawyers in Perth have answered your questions.
Wills and Estate Planning
A Will is defined as a legal document that outlines your wishes for when you die. Wills cover how your property and possessions will be distributed amongst family and friends, as well as other important details like who would care for your minor children in the event of your death, your funeral wishes and whom you choose to be your executor.
A Will can ensure that your property is managed in accordance with your wishes, and protect your loved ones from unnecessary disputes or uncertainty regarding your assets.
There are also numerous lifestyle changes that can affect the validity of your Will – so it is recommended that you review your Will every 3 – 5 years.
You don’t have to make a Will, but there are many benefits to having one.
Yes, you can. However, for your Will to be valid, you must ensure that you meet certain legal requirements in order for it to take effect upon your passing.
The Administration Act provides a schedule as to how your Estate will be administered in the absence of a Will. This may be different to your wishes.
Depending on the reason for the invalidity, it may be possible for a person to make an application for “Letters of Administration with Will annexed”. We are able to take you through this process.
There are many benefits of having a Will:
- Your Estate is distributed in accordance with your wishes, as opposed to that prescribed at law.
- You are able to ensure your loved ones are properly provided for after your passing.
- It will provide you with certainty of the distribution of your assets after your death.
- Having a Will often helps to preserve relationships after the passing of a loved one. It is common for people who are grieving to handle situations differently than what they would in other circumstances. By having your executor appointed and instructions on how you wish for your Estate to be administered, you can help to prevent arguments that may arise between your loved ones.
- You are able to express your wishes in respect of guardianship of children and other dependents.
- You are able to establish testamentary trusts, which can survive for extended periods of time following the date of your death.
Probate and Letters of Administration
Losing someone close to you is always a difficult time. In addition to dealing with your grief, you may be either named as executor in a Will or trying to figure out what to do when somebody has passed without a Will.
If you have been nominated as an executor in a Will, the Court may make a Grant of Probate to you, giving you the authority to manage the deceased person’s property. The obtain the Court’s authority to manage a deceased Estate, you must complete a Probate application.
If you are named as an executor in the Will, your next steps will be to ascertain the deceased’s assets and determine if you need to obtain a Grant of Probate. If so, you will then need to call in the assets, pay all liabilities, and distribute the Estate assets according to the terms of the Will. Our experienced team is happy to guide you through this process, providing as much or as little support as needed.
If a person passes without leaving a Will, their Estate will be distributed in accordance with the laws of intestacy, which are contained primarily within the Administration Act. To prevent this, a person who is entitled to make an application to manage the deceased’s Estate will need to obtain a Grant of Letter of Administration from the Court. Then, once the grant has been issued, the applicant will be like an executor and will need to call in the assets, pay the estate liabilities, and distribute the residuary of the Estate according to law. Our helpful solicitors are able to guide you through this process to ensure that you meet all the requirements at law.
This will depend on the assets of the Estate. Our friendly solicitors are able to help you answer this question in a free 15-minute consult. Or, simply complete our questionnaire.
Regardless of whether somebody passes with or without a Will, bank accounts and Estate assets in the sole name of the deceased person are not able to be touched until such time as either a Grant of Probate or a Grant of Letters of Administration are issued from the Supreme Court of Western Australia. As a named executor or applying administrator, banks need to be notified of the death of an account holder so the assets of the Estate can be protected.
Estate Administration
Once a Grant of Probate or a Grant of Letters of Administration have been issued by the Supreme Court, the person issued with a grant is then required to administer the Estate either in accordance with the wishes of the deceased person contained within the Will, or in accordance with the provisions of law.
No, we can make it easy for you calling in the Estate funds into our trust account and distributing from there.
When leaving gifts in your Will to a charity it is important to consider what type of gift you bequeath and the purpose you wish the charity to use your contribution. Some examples are whether it be for research or for the charities general purposes.
It is important to draft very clear clauses when devising charitable bequests as you run the risk of the trust being void for uncertainty.
Yes. Any trust or specific gift listed in the Will is required to be distributed first. Sometimes the Estate does not have the assets to fulfil specific gifts and if this occurs, we recommend seeking specialist services for advice. Our experienced team is happy to assist you.
Inheritance disputes
Sometimes, the relationships between family and friends of a deceased person are complex and when combined with grief, can cause particular difficulty that can end up in dispute.
Our solicitors are both trained and experienced in the resolution of disputes over estate matters, and we have many options available to finding a pathway forward. Our solicitors are trained in collaborative practice, which involves an agreement by all parties to resolve the dispute without recourse to the court processes.
However, it’s not always possible or appropriate to resolve matters outside of court. If this is the case, we also have experienced lawyers capable to properly protect your rights and advocate for you in a court of law, if required.
Inheritance disputes
Collaborative practice in the wills and estates area is fairly new to Western Australia. It involves an agreement that all parties choose to resolve any dispute outside of the court processes. The benefits of a collaborative approach are extensive, but most importantly, they often result in the preservation of relationships.
When parties agree to resolve the dispute by way of collaborative practice, all parties and their independent collaborative-trained representatives get together in a mediation-style conference.
One of the many benefits to this approach is that the negotiation conferences often includes assistance from external professionals, such as financial advisers and counsellors, enabling current and accurate advice at the time of decision making. In this way, better decisions for all are able to be achieved, and sometimes the professionals are able to ‘think outside the box’ to find alternate resolutions.
Reseals
Where a Grant of Probate or Letters of Administration have been issued in a foreign jurisdiction that is an independent Commonwealth country, the Grant is able to be recognised in Western Australia by the Supreme Court issuing a “Reseal” of the grant.
If a grant is issued outside of the Commonwealth, it is likely that you will need to obtain a new grant.
Our team can help you understand and meet the requirements for a grant issued outside of Western Australia.
Enduring Power of Attorney (EPA)
If for any reason, you become unable to attend to your financial and legal affairs during your lifetime, or simply if it is more practically convenient to enable someone else to deal with your affairs, you are able to appoint an attorney to act on your behalf.
A Power of Attorney enables a person (the appointed attorney) to act on your behalf, including accessing bank accounts and (if registered with Landgate) dealing with property.
It is possible to appoint your attorney to have extensive powers and operated all times, or you may wish to appoint an attorney who is only able to act upon a particular event, for example incapacity due to accident or illness.
Power of Attorney is only valid during your lifetime. It will cease immediately upon your death when the provisions contained within your will would then take effect.
Enduring Power of Guardianship (EPG)
Similar to Enduring Power of Attorney, Enduring Power of Guardianship operates to enable someone else to do with your affairs on your behalf. However, an Enduring Power of Guardianship differs from an attorney in that it relates to personal decisions as opposed to financial and property -related decisions.
In this way, you are able to appoint a person to act as guardian to make decisions in respect your care and well-being in the event that you lose the ability to be able to make such decisions for yourself.
If you, or someone close to you, think you might need to establish a Power of Guardianship, contact one of our solicitors today.
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