A will is a legal document that outlines how you want your assets and property to be distributed after your death. In Victoria, it is crucial because it allows you to have control over who inherits your belongings, appoint guardians for minor children, and express your final wishes according to the laws of the state.
Frequently Asked Questions
Yes, having a will is still important even if you don’t have significant assets. A will ensures that your wishes are followed regarding the distribution of any belongings or personal items you may have, and it can also address other important matters such as appointing guardians for your children under the laws of Victoria.
While it is possible to draft your own will in Victoria, it is highly recommended that you consult with an experienced estate planning lawyer. They can provide guidance, ensure your will is executed in compliance with specific legal requirements in the state of Victoria, and help address complex issues to avoid potential pitfalls and disputes.
In Victoria, if you die without a will, the laws of intestacy will determine how your assets are distributed. The state has specific rules that govern the distribution, which may not align with your preferences. The court will appoint an administrator to handle your estate according to the laws of Victoria, and this process can be time-consuming and may not reflect your specific wishes.
Estate planning in Victoria is the process of planning your affairs to ensure that your assets are managed, protected, and distributed according to your wishes during your lifetime and after your death. It is necessary because it allows you to have control over important decisions, minimise potential conflicts, reduce tax liabilities, and provide for your loved ones within the legal framework of Victoria.
It is advisable to start estate planning in Victoria as soon as possible, regardless of your age or the size of your estate. Life is unpredictable, and having an estate plan in place can provide peace of mind. Starting early allows you to make adjustments as your circumstances change and ensures that your wishes are reflected in legal documents that comply with the laws of Victoria.
An estate plan in Victoria may include several key documents, such as a will, enduring power of attorney (financial), appointment of medical treatment decision-maker, and advanced care directive and binding death benefit nominations (if you have super). These documents work together to address various aspects of your estate, including asset distribution, incapacity, and healthcare decisions, following the specific requirements outlined by the laws of Victoria.
In Victoria, a will is a legal document that becomes effective upon your death and specifies how your assets should be distributed. A trust, such as a testamentary trust, can be created in your will and holds and manages assets for the benefit of your chosen beneficiaries after your death. Trusts can provide additional benefits such as protecting assets, tax planning, and maintaining privacy within the legal framework of Victoria.
It is recommended to review your will and estate plan regularly, typically every three to five years or whenever significant life events occur. Major life changes like marriage, divorce, birth of a child, or significant changes in assets or relationships may necessitate updates to ensure your plan remains current and aligned with the laws and regulations of Victoria.
If you anticipate that your will might be challenged or if you have complex assets or family circumstances, it is wise to seek help from a qualified lawyer who specialises in estate planning and wills. We can help you assess potential challenges and suggest strategies to to minimise will challenges and estate disputes.
Probate in Victoria is the legal process where the Supreme Court validates a will and grants authority to the executor to administer the estate of a deceased person. It typically occurs when a person dies with a will (testate). The probate process ensures that the assets are distributed according to the terms of the will and the laws of Victoria.
In Australia, the distribution of superannuation death benefits depends on various factors, including your nominated beneficiaries and the rules of your superannuation fund. Generally, the following individuals are eligible to receive superannuation death benefits:
Dependants: This includes your spouse or de facto partner, any children (including adult children), and anyone who is financially dependent on you at the time of your death. They may receive the superannuation death benefits as a lump sum or as an income stream.
Legal personal representative: If you haven’t nominated any specific beneficiaries, the superannuation death benefits may be paid to your legal personal representative, who will distribute the funds according to your will or the rules of intestacy.
Non-dependants: In some cases, non-dependants such as adult children or other individuals who were not financially dependent on you may still be eligible to receive the death benefits, but generally, they will receive the benefits as a lump sum only and may be subject to higher tax rates.
To ensure that your superannuation death benefits are distributed according to your wishes, it’s important to make a valid binding death benefit nomination (BDBN) or a non-binding nomination with your superannuation fund. This allows you to specify your preferred beneficiaries and the proportion of benefits they should receive.
Estate administration is the process of managing and distributing the assets and liabilities of a deceased estate. It involves the collection, preservation, and distribution of the deceased’s assets according to their will or the applicable laws of intestacy if there is no will.
The estate administration process typically involves several steps, which may vary depending on the complexity of the estate. Here are the general stages involved:
Upon Death: The executor or legal personal representative, named in the deceased’s will or appointed by the court, takes charge of the estate administration. If there is no will or appointed executor, the court may appoint an administrator.
Applying for a grant: The will is submitted to the court for validation. Probate involves proving the validity of the will and identifying and valuing the assets.
Estate Inventory: The executor gathers information about the assets and liabilities of the estate. This may involve locating and securing bank accounts, investments, real property, personal belongings, and other property owned by the deceased.
Debts and Taxes: The executor identifies and pays off any outstanding debts, including funeral expenses, outstanding bills, and taxes owed by the estate. This may involve filing the final income tax return for the deceased.
Asset Distribution: Once debts and taxes are settled, the remaining assets are distributed to the beneficiaries according to the deceased’s will or the laws of intestacy. This may involve selling assets, transferring ownership, or liquidating investments to generate cash for distribution.
Estate Accounting: The executor keeps detailed records of all financial transactions and prepares a final accounting report, which outlines the administration process, expenses, and distributions made to beneficiaries.
Estate Completion: The executor concludes the estate administration by closing bank accounts, cancelling credit cards, transferring titles, and completing any other necessary administrative tasks. The estate is considered officially closed once all assets are distributed, debts are settled, and the final tax returns are lodged.
It’s important to note that estate administration can be a complex and time-consuming process, particularly for larger or more complicated estates. Executors should seek legal and financial advice to ensure they fulfill their duties accurately and in compliance with applicable laws and regulations.
At Bayside Wills & Estates Lawyers, we offer comprehensive estate administration services, alleviating the administrative burden as well as the stress and worry for our executor clients.
In Victoria, Australia, an accredited specialist in Wills and Estates is an Australian Legal Practitioner who has obtained specialised expertise in the field of wills, estates, and succession law. Accredited specialists are lawyers who have met the rigorous standards set by the Law Institute of Victoria (LIV), the peak professional body representing legal practitioners in the state.
To become an accredited specialist in Wills and Estates, lawyers must fulfill specific criteria established by the LIV. These criteria typically include:
Substantial experience: Lawyers must demonstrate a high level of experience in practicing wills and estates law, including drafting wills, administering estates, and providing legal advice in matters related to inheritance and succession.
Ongoing legal education: Lawyers seeking accreditation must actively engage in ongoing professional development activities, including attending relevant seminars, conferences, and workshops to stay updated on the latest developments in the field of wills and estates law.
Peer review: Accreditation candidates are subjected to a comprehensive peer review process where their skills, knowledge, and expertise are evaluated by a panel of experienced legal professionals. This review assesses their competence and ability to handle complex matters in wills and estates law.
Written examination: Accreditation candidates are required to pass a written examination that tests their knowledge and understanding of the principles, legislation, and case law pertaining to wills and estates in Victoria.
Upon meeting these criteria and successfully completing the accreditation process, the lawyer is recognised as an accredited specialist in Wills and Estates by the LIV. This accreditation signifies their expertise and specialisation in this particular area of law, providing assurance to clients seeking legal assistance with wills, estates, and succession matters.
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