Wills

A Will is a set of instructions as to how your assets shall be divided when you die. A will is prepared when you are alive and have a sound mind.

Upon death an Executor is appointed under the provisions of the Will and an application is made for Probate. Once probate is granted, the administration of the estate will transfer or sell assets according to the instructions within the Will.

If you are over 18 you should have a Will.

Dying without a will is known as dying intestate. Having a valid will ensures the assets you have are gifted to those that you have chosen, not those who are specified by law if you die without a Will.

Areas to consider when making a will that can make the process more complicated are:

• You have large asset holdings;
• Complex asset holdings (businesses, family trusts);
• Minor Children;
• Previous Spouse/Partner;
• Divorced;
• Divorced and remarried;
• Complex family situation;
• You wish to leave someone out of a Will that would be entitled under the law.

An efficient will also ensures the most tax-effective way to gift your assets leading to unnecessary tax bills for your estate and your beneficiaries.

People over 18 should have a will. When there is a change in personal circumstances, consider updating your will. These can be life events like:

• Marriage/Separation/Divorce
• Birth of a child
• Retirement
• Buying or selling real estate
• Change in relationships with family members

A Will, Estate Plan and Power of Attorney do not need to be lodged or submitted anywhere. Make sure its signed and witnessed. Keep a copy in a safe place and give another to your appointed decision-maker, a trusted family member and accountant. 

Enduring Power of Attorney

An EPOA enables a trusted person to take control if you loose capacity for example an accident or dementia. The EPOA will activate in the event that you are not in a position or no longer have the capacity to make those decisions yourself. These may include financial, medical or other general or specific areas – you can nominate a trusted person to act as your EPOA and therefore to act in your shoes.

Probate means the court issues a document confirming that the will is valid. It also confirms the appointment of the executor.

 There are two types of these grants:

• Probate – where there is a will
• Letters of administration – where there is no will

A grant of representation gives a person the legal right to administer the estate of a person who has died.

Probate declares the will is the last will that the deceased person. It also confirms that there are no objections to the will being valid.

An executor can apply for probate or they can ask a solicitor or trustee company to do it for them. There are a series of steps you need to go through to apply – including advertising online that you are applying. When you submit your application for probate to the Supreme Court, you need to include the deceased person’s will, death certificate and a confirmation of the estate’s assets. You also need to include an affidavit. An affidavit is a legal document that, in this case, proves to the court that the executor will administer the estate well and in line with the law.

When a person dies without a will (intestate), there is no executor to administer the estate. In these cases, the closest next of kin can apply for letters of adminis

How long does it take to grant probate

Being granted probate takes around two weeks.