A Will is a legal document through which a deceased person disposes their estate. In other words, a Will sets out the instructions that a deceased person has left on how they wish for their estate to be dealt with. If you have minor children, you can choose to nominate one or more guardians in your Will who you wish to give the responsibility of the care of your children to.
To be valid, a Will must be signed and witnessed correctly in accordance with the Wills Act 1997 (Vic).
A Testator is a person who has made a valid Will.
A person is said to have passed away “intestate” if the person does not have a Will, has an invalid Will, or has a Will that disposes only a portion of their property. In this situation, the laws of intestacy apply to distribute the deceased’s persons property to their partner, children or other relatives. If the deceased person does not leave behind any partner, children or other relatives, ownership of the estate Will revert to the state of Victoria.
An estate is the assets and liabilities of a person. In other words, an estate is the net worth of a person. A deceased estate is the net worth of a deceased person. Examples of assets include real estate, personal belonging and bank accounts. Examples of liabilities include personal loans.
A beneficiary is a natural or legal person who is entitled to receive a gift or benefit from a deceased estate. You can choose to nominate any number of persons as beneficiaries of your
An Executor is a person who is responsible for administering a deceased estate. You can appoint one or more persons to be the Executor of your estate when you pass away by naming them in your Will. In the case of multiple Executors, you can make them jointly responsible for the administration of your estate or you can give them separate responsibilities.
Administering an estate involves collecting assets of the estate and distributing them in accordance with the instructions of the Will and discharging liabilities of the estate by paying debts owed by the deceased. However, these are not the only things that an Executor may have to do.
If a Will does not appoint an Executor, the Supreme Court will need to appoint someone to administer the estate. A person appointed by the Court is known as the Administrator. Usually, the beneficiary with the largest interest in the estate Will be appointed the Administrator.
Probate is the legal process of validating a deceased person’s Will. Applications for probate in Victoria are made to the Supreme Court of Victoria in accordance with the Supreme Court (Administration and Probate) Rules 2014 (Vic). The award of a “grant of probate” is the Court’s way of officially recognising that a Will is valid and can be acted upon.
A Grant of Representation is a document which proves that the Executor or Administrator of a deceased estate has the authority to deal with the assets of the estate. A Grant of Representation may be required depending on the nature of the asset left behind by the deceased. For example, a Grant of Representation will be necessary to prove title to real estate in the name of the deceased. Real estate in the name of the deceased cannot be sold or transferred without it.
The County Court or Supreme Court may order that provision be made out of a deceased’s estate for the proper maintenance and support of a person who, at the time of the deceased’s death, was –
A family provision order will not be made unless, at the time of the deceased’s death –
In determining the amount of provision, the Court must consider:
Please contact us to discuss your options. There is a short time frame during which you are able to contest a Will. We offer complimentary conversations and estate reviews.
Wills can be contested in roughly two broad ways:
1) Contesting the validity of the Will when it was made. There are many complicated reasons why a Will may be invalid, including whether a testator (the person writing the Will) had capacity and the right state of mind to make the Will. It is important to discuss this issue with a lawyer as soon as possible.
2) Contesting the distribution a beneficiary recieves under the estate and seeking for a Family Provision Order to be made.
Yes. The rules in relation to making a Family Provision Claim are similar. There are time limits as to when such a claim is made and we suggest getting urgent legal advice.
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