A Will is a document signed by you and witnessed by two independent adult persons which sets out what happens to your Assets (and Liabilities) when you die. Your Will must appoint an Executor (person who administers your Estate when you die) and an Alternate Executor if the Executor is unwilling or unable to act. You should also consider when making a Will the following: Organ Donation, Funeral/Cremation/Burial Requests, Guardians for Children, Provision for Pet Care, Cash Legacies, Bequests of Chattels, and Executor/Legal and Financial Advisor Charging Clauses.
If you already have a Will, a Codicil is a document used to amend one or two Clauses in your Will, for example changing the Executor or a Beneficiary.
Laws of Intestacy
There is a formula as to what happens if you die without a Will.
More Complicated Estate Planning
Some people have more complicated affairs such as a Family Trust, Testamentary Trust, Protective Trust, Discretionary Trust or Charitable Trust so their Wills require special attention. A Complex Will may be required in such circumstances. Real Estate ownership and your wishes how that is to be dealt with also give rise to other Clauses which may be inserted in your Will such as Life Interests or First Options to Purchase.
Financial and Personal Enduring Powers of Attorney
Financial and Personal Enduring Power of Attorneys are appointed to look after your financial affairs. They operate from the date the document is signed until the date of your death unless you revoke them prior.
Medical Treatment Enduring Power of Attorney
Medical Treatment Enduring Powers of Attorney operate when you have lost capacity. You appoint and give your Agent the right to refuse medical treatment, operations, drugs or medical procedures. Palliative Care, to relieve pain and discomfort and provision of food and water is not included.
Administration and Guardianship
If you do have a Financial and Personal Enduring Power of Attorney or a Medical Treatment Enduring Power of Attorney then your loved ones may have to apply to VCAT (the Victorian Civil and Administrative Tribunal) to be appointed as your Administrator (for your financial affairs) and/or your Guardian (for affairs regarding your physical person – every day decisions including medical). If you neglect this responsibility you may be left with a government appointed Guardian who will decide on your physical needs and/or a government appointed Administrator who will take over your Assets.
Your Executor’s duties are to uphold the terms of the Will and administer the Estate according to law. Generally an Executor’s duties include the verification of Assets and Liabilities, applying for Probate (verifying the Will, Death Certificate and Assets/Liabilities of a Deceased Person), calling in Assets/transferring Assets to Beneficiaries (as required by the Will), obtaining a Tax Clearance, holding funds in Trust for minor Beneficiaries and distributing the Estate. Joint Executors must act together. If you do not leave a Will then your Administrator must administer your Estate in accordance with the Laws of Intestacy.
Challenging a Will
Your Will needs to be certain and fair because if it is not it may be open to challenge by an aggrieved person who believes that you ought to have provided for them or at least provided more for them if they were already provided for. The Court may alter the distribution of the Estate by way of a Claim pursuant to Part IV of the Administration of Probate Act 1958. Your Executor has to uphold the terms of the Will.
Choosing a Lawyer that has the ability of providing sincere and valuable legal advice, but also commits to building a strong interpersonal relationship with a client, is indispensable. At Nicholas O’Donohue & Co., for more than 90 years we have devoted continuous efforts to make sure that our clients are able to obtain the help they need, and our persistence has shown the results. Malcolm has been practicing for over 21 years, with over 16 years experience in Wills and Estates alone. His advice avoids leaving your family with uncertainty, expense and potential for conflict.