A Will is a legal document that sets out a person’s wishes as to how their property is to be distributed after their death. The Will must be in the proper form, and be executed in the manner prescribed by law.
Without a valid Will, you die intestate. That means that your assets will be passed down according to legislation, and not necessarily in the way that you intended. If the Will does not deal with all of your assets, there will be a partial intestacy.
Your Will must have the following:
It is advisable to select a back-up option for the Executor, in case the person you chose is unwilling, or unable to act in that role at the time of your death. When preparing a Will, it is important that your circumstances are fully covered in the drafting of the Will. We can assist you in ensuring that your Will is suitable for your circumstances.
Some common matters that are contained in a Will:
The following events automatically revoke a Will:
A Will may be found to be invalid if:
If you die intestate (without a valid Will), then your assets will pass according to legislation, and not as you intended. We are happy to provide you with advice about your existing Will, and we can advise you on whether you need to update or replace your Will.
You can only give away property that is owned by you. You cannot give away an asset that is:
We can help you navigate this complex area, so that you can achieve the desired outcome that you want.
After you die, your Executor must complete certain administrative tasks in order to be able to disperse your assets. If you have a Will, then your Executor may need to apply for a Grant of Probate. If you die without a valid Will, your Executor may need to apply for Letters of Administration.
A ‘Grant of Probate’, and ‘Letters of Administration’, are both applications made to the Court to obtain a certificate authorising the Applicant to be the representative of the Testator.
In both scenarios, the Court will issue a certificate to your Executor, allowing your Executor to deal with your assets. Whether a Grant of Probate or Letters of Administration will be required, will depend on the type of asset that you have. The requirements for a transfer of an asset will depend on the nature of the asset you wish to transfer. Different bodies regulate the transfer of assets. For example – Landgate regulates the transfer of property in Western Australia. A bank regulates the transfer of money. Each regulating body has its own rules.
Mossenson’s can advise to whether an application needs to be made to the Court. Once the Executor or Administer is authorised to act, the Executor/Administrator brings in the assets of the estate, pays the debts, and distributes the assets according to the Will, or as required by law, if there is no Will.
A Will can be challenged in Court, and either partially or completely revoked. Some of the most common grounds for challenging a Will are:
We can provide advice as to the likelihood of a challenge succeeding; we can act for you in Court; we can negotiate to settle; and provide an estimate as to the quantum of damages that a Court is likely to grant, should the challenge be successful.
We offer the service of storage at no cost to you.