Wills & Estates

a. A few important things to think about prior to seeing a Lawyer to draft your Will are:

• who will be your Executor?
• who will be my Alternate Executor (in the event your Executor dies before you or does not wish to fulfill the duties of Executor)?
• if you have minor children, who will be their Guardian?
• what assets do you own, either in your name or with other people?
• who will you leave your estate to?
• who might claim to have rights over your estate?
• what are your funeral wishes?
• do you want to leave money to charity?

a. Choosing who to appoint as your Attorney is the most important decision. It is recommended that you appoint a family member or trusted friend, as these people know and understand your wishes. If there is no one that you trust to appoint, you can appoint someone independently such as a trustee company for financial matters or a lawyer. However, if you do not appoint anyone, VCAT may appoint someone, such as a family member, the Public Advocate, or a trustee company.

a. You should review and update your Will if:

• your family relationships change (get married, separated, divorced, remarried, children become adults)
• your family members change (death in the family, birth of children/grandchildren, adoption, stepchildren)
• your financial circumstances change
• your appointed executors or guardians pass away or lose capacity
• anything happens to a beneficiary (someone receiving under your Will), (such as injury, death, or bankruptcy).

a. A Part IV Claim is also known as a Family Provision Claim. It is an Application made to a Court for an Order requesting that greater provision be made for the Application (person applying for the Order) out of the deceased’s estate. The Application must show that the deceased had a moral obligation to make adequate provision for the Applicant in the Will and the provision made for the Application in the Will was inadequate, having regard to the Applicant’s financial needs and resources. The Application must be made within 12 months of the deceased’s date of death.

a. When someone dies and leaves property, money and possessions (known as their estate), you need to sort out who gets what. Prior to obtaining Probate also known as a Grant of Representation, you will need to register the death and obtain a copy of the Death Certificate for each of the deceased’s assets (each bank account, credit card, mortgage, etc). The Executor named in the deceased’s Will is required to apply for Probate. If there was no Will for the deceased, the Next of Kin will need to apply for Letters of Administration.

a. The main benefit of a Testamentary Trust is their ability to protect assets and to reduce tax paid by Beneficiaries from income earned from the inheritance. Trusts do not have to pay tax on income that is distributed to Beneficiaries, and this means your Beneficiaries will get to enjoy more of the estate. The Trust does however have to pay tax on undistributed income.

a. A Guardianship Order is a legal document that gives a person (called a “Guardian”) power to makes decisions on behalf of another person about personal matters. This may include decisions about accommodation, health care and access to services. In some cases, there may be more than one Guardian (“Joint Guardians”). The Victorian Civil and Administrative Tribunal (VCAT) can only make an Order if you do not have decision-making capacity to make decisions about personal matters because of your disability, you are in need of a Guardian and an Order will promote your personal and social wellbeing.