Wills & Estate Planning

Protect your most valuable assets.

Planning ahead gives you control over the future of your estate and ensures that your Will provides for your loved ones. Our Wills and estate planning lawyers take the time to ensure that your final wishes are carried out quickly, efficiently and tax effectively for your intended beneficiaries.

Our difference

When your life savings are at stake, obtaining the right advice can save time and money, both for you and your beneficiaries. Our lawyers assist you in navigating through the complexities of tax, superannuation, trusts, legal challenges, and intricate family and interpersonal relationships, so your goals are achieved.

We understand that each person has different needs with their Wills and estate planning. Our lawyers are knowledgeable and experienced with the sensitivity and foresight to ensure that those you love are taken care of and free from unnecessary stress and costs at a time of bereavement.

Power of Attorney

Appointing a Power of Attorney is an important part of the estate planning process. In Victoria, there are two very important documents to consider – the Enduring Power of Attorney and the Appointment of Medical Treatment Decision Maker.

  • Enduring Power of Attorney allows you to appoint someone to make legal, financial, and lifestyle decisions if you are not able to make them yourself.
  • Appointment of Medical Treatment Decision Maker gives someone the power to make medical choices for you if you are unable to.

Business succession planning

Whether you have a straightforward Self Managed Super Fund, a business, or a complex series of inter-related trusts and companies, it pays to take the time to ensure that control of your wealth is passed to your intended beneficiaries.

Our lawyers work with you to map out succession plans that cover business or personal transition arrangements, superannuation, Wills and estate planning. In particular, we have experience working with small to medium-sized businesses to structure the business owners’ commercial and personal affairs in a way that provides their families with a financially healthy legacy.

Probate and estate administration

Dealing with the estate administration process can be a difficult time, especially after the recent loss of a loved one. We guide you through the process if you have been nominated to administer the estate of a Will maker. We have prepared a Guide to Estate Administration and acting as an Executor which you can read here.

Our Wills and Estate services

We start with what your goals are. We then provide you with advice about the best way to achieve your goals, and the taxation, pension eligibility and asset protection consequences of doing so. We take the time to understand your family dynamics. If there are current sensitives or issues that might arise later, then we can help you address them to obtain the best possible outcome.

Wills & Estate Planning FAQs

Powers of Attorney and Appointments of Medical Treatment Decision Maker are generally invalid if signed incorrectly.

An incorrectly signed Will (called an ‘informal Will’) might still be valid. However, the executors almost always incur extra expense because the Court requires an explanation as to why the requirements for signing a Will weren’t followed, usually via an affidavit from a witness. It can be expensive, and there’s no guarantee that the Court will grant probate of an informal Will.

‘Probate’ is the executor ‘proving’ that the Will is valid, and obtaining the Court’s permission to distribute the assets.

Theoretically, yes! However, it would be expensive to satisfy the Court that the video recording should be treated as a last Will. We do not recommend it. A very recent case in the Victorian Supreme Court dealt with this exact issue, and the Court decided (after hundreds of thousands of dollars in legal costs) that the video recording was not a valid Will.

A claim for a share, or a larger share, out of an estate can be made if the deceased had a moral duty to provide for a claimant and they can show that the Will didn’t adequately provide for their proper maintenance and support. A claimant must be closely related to the deceased and generally includes a spouse or former spouse, a child or stepchild, a parent or a grandchild who was dependent on the deceased.

Yes. If the deceased did not have a valid Will then Letters of Administration can be applied for by any person/s entitled to inherit the deceased’s assets. Once Letters of Administration have been granted and an administrator appointed, eligible persons can make a claim.

If a person wishes to make a claim on a deceased estate, they must make an application to the court within six months of the Grant of Probate or Letters of Administration.

A Will is a legal document that sets out who you want to receive your assets after you die.

When you are preparing your Will you need to think about:

  • which of your family or friends you would like to inherit your assets,
  • what your significant assets are,
  • what your significant debts are,
  • who you would like to be executor and trustee of your estate,
  • if you have young children who you would like to name as guardian

You need to bring with you copies of all paperwork related to:

  • your significant assets including the title to any real estate,
  • bank account statements,
  • information about your share holdings and any other investments,
  • details about your debts including your mortgage or car loan,
  • and have
  • the full name and address of those who you would like to inherit your assets,
  • the full name and address of your executor, trustee or guardian

An executor of a Will carries out your wishes after you die. The role of the executor is to collect in all your assets and manage their distribution in accordance the terms of the Will. A trustee looks after ongoing gifts to your family or friends for the time stated in a Will – for example, a trust for your children or grandchildren until they reach the age of 18.

Anyone over the age of 18 can be appointed as executor. However, you need to be aware that an executor is left with the stress and responsibility involved in administering your estate at a time when they may be grieving. As such it is important that you ensure that your executor will have the time and capability to carry out the required duties.

If you are able you can visit our Bendigo or Castlemaine office.  If you are frail, in hospital, a nursing home, palliative care, we can visit you or your loved one.

If you and your spouse own truly everything jointly, then all assets will pass to the survivor when the first of you dies.  However, most couples will not own absolutely everything in joint names. Even if you do, joint ownership only passes title when the first of you dies.  It does not pass title once both of you have died.  You also need to consider that unless the surviving spouse prepares a Will after the death of the first spouse, all assets will eventually pass to the family of the surviving spouse, and nothing will pass to the family of the first spouse.

If you die without a Will (known as intestate) your assets will be distributed according to a pre-determined formula, with certain family members receiving a defined percentage of your assets despite what you may have wished.

In Victoria, a person who has possession of the Will of a person who has died must allow the following to inspect and make copies of the Will:

  • any person named or referred to in the Will;
  • any person named or referred to in any earlier Will as a beneficiary;
  • any spouse at the date of your death;
  • any domestic partner;
  • any parent, guardian or children of the deceased person;
  • any person who would be entitled to a share of the assets if the deceased person had died without a Will;
  • any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate if the deceased person had died without a Will;
  • any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

It is important to store your original Will in a safe place. It is a good idea to tell your executor and someone close to you where your Will is stored. We store Wills in safe custody on behalf of our clients free of charge.

You should review your Will every three to five years and whenever your financial or family circumstances change including when you separate, re-partner, marry, divorce, a person named in your Will dies, or you have children or grandchildren.

Estate Administration FAQs

Probate is the process of proving and registering in the Supreme Court the last Will of a deceased person. Once granted probate gives the executors appointed by the Will the legal right to deal with the assets of the deceased.

Where a person dies without a Will in order to deal with their assets a person, usually their next of kin need to apply to the Supreme Court for Letters of Administration which authorise the next of kin to deal with the assets of the deceased in accordance with a pre-determined formula.

There is no centralised Will registry. To find the Will you need to search the deceased personal possessions and paperwork and if unsuccessful try the following:

  • Contact the deceased’s bank to see if they held a safety deposit box or had documents held in safe custody or securities;
  • Check the deceased person’s computer and smart phone – there may be an electronic copy of a will or evidence of their testamentary intentions.
  • Contact local solicitors where the deceased person resided throughout their life and ask if they hold a copy of the Will for the deceased (look for any paperwork or correspondence from solicitors).

The executor or the next of kin intending to apply for letters of administration where there is no Will is responsible for making the funeral arrangements if the Will maker has not already made those arrangements. The executor should follow any directions left by the Will maker as to the funeral arrangements but is not bound to do following those directions.

If the executor is not an immediate family member, then the executor should consult with the family about the funeral arrangements. The reasonable cost of the funeral is an expense of the estate, but the executor should be careful not to incur expenses beyond the available funds in the estate.

Will readings are a thing of the past when due to a lack of literacy in the community it was necessary for the Will to be read to affected parties. Today a reading of the Will only occurs in movies or books not in real life.

If the executor is not an immediate family member, then the executor should consult with the family about the funeral arrangements. The reasonable cost of the funeral is an expense of the estate, but the executor should be careful not to incur expenses beyond the available funds in the estate.

In Victoria, a person who has possession of the Will of a person who has died must allow the following to inspect and make copies of the Will:

  • any person named or referred to in the will;
  • any person named or referred to in any earlier will as a beneficiary;
  • any spouse of the deceased at the date of death;
  • any domestic partner of the deceased;
  • any parent, guardian or children of the deceased person;
  • any person who would be entitled to a share of the assets if the deceased person had died without a will;
  • any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate if the deceased person had died without a will;
  • any creditor or other person who has a claim at law or in equity against the estate of the deceased person and who produces evidence of that claim.

There is no legal obligation for beneficiaries to be told that they are beneficiaries before the gifts in the will are given to the beneficiaries but executors are usually encouraged to be open, honest and in regular communication with beneficiaries and to provide information on the progress of the estate to the beneficiaries.

An executor is entitled to be reimbursed by the estate for any amounts he or she has paid on behalf of the estate, provided they were appropriate amounts. Often executors will receive no other payment or benefit. However, an executor may be paid or receive “executors commission” where:

  • the Will maker sets out in the will that the executor is entitled to be paid for his or her efforts;
  • where a gift to the executor is included in the Will in lieu of the right to apply to the court for payment;
  • if all the beneficiaries agree on an amount the executor should be paid from the estate;
  • if the Supreme Court orders that the executor is entitled to be paid.

The time it takes to finalise an estate depends on what must be done and how long it takes it obtain the required information from third parties such as banks and companies in which the estate has shares.

In Victoria the law says that executors do not have to distribute the estate within 12 months of the death of the Will maker and we do not recommend that estates be distributed fully before six months from the time of probate which is the deadline for claims to be made against the estate. All the estate’s debts including tax debts should paid before the estate is finalised.

There is no inheritance tax in Australia with all states in Australia abolishing death duties in 1979. However, there are still tax consequences associated with the administration of an estate and the executor should consider issues in relation to capital gains tax and GST.

Powers of Attorney FAQs

Powers of Attorney are legal documents that allow you to choose who will make decisions about financial and personal matters if you are not able to make those decisions yourself.

At some time in your life you may suffer an accident or illness that takes away your capacity to make your own decisions about your financial and personal affairs. If you don’t have a Power of Attorney you may not be able to choose who should make decisions on your behalf which could lead to conflict with your family or result in the Victorian Civil and Administrative Tribunal being asked to appoint an administrator or guardian to help you.

An attorney under a Power of Attorney (even an Enduring Power of Attorney) does not automatically have a right to obtain the original or a copy of the Power of Attorney and can normally only obtain it if you consent or have lost capacity. We are able to provide you with a certified copy of the Power of Attorney so you can decide who should be given a copy.

Who you choose as your attorney is up to you. It may be your spouse or de facto partner, another family member or close friend, an accountant, lawyer or a trustee company. No more than two people can be attorneys at any one time. When choosing an attorney, you should carefully consider the following questions:

  • Is the person 18 years of age or older?
  • Is the person trustworthy and likely to act in my best interests?
  • Is the person willing to take on the responsibilities?
  • Is the person competent to deal with all financial and property matters relating to my estate?
  • Is the person competent to take on the task of keeping and preserving accurate records and accounts of all dealings and transactions made under the enduring power of attorney?
  • Does the person live close enough to me to be able to discharge his or her responsibilities under the enduring power of attorney?
  • Could the choice of attorney create conflict within your family?

It is important to store your Power of Attorney in a safe place. You should let your attorney know where your Power of Attorney is stored so that they can access it should the need arise. We store Powers of Attorney in safe custody on behalf of our clients free of charge.

Even if you own everything jointly it is important to have a Power of Attorney. If you for any reason are not able to make decisions about your financial affairs then important decisions regarding the sale of your assets such as the sale of your house will not be able to be made without an application having to be made Victorian Civil and Administrative Tribunal to appoint an administrator to make those decisions for you.

Wills & Estate Planning Knowledge Base

Our Wills & Estate Planning experts

Vesna is an empathetic and caring advisor, and after 12 years working at Robertson Hyetts is a trusted and supportive presence for many clients in Castlemaine. She understands that when someone passes away, dealing with an estate is a stressful situation – it’s never something people want to do, it’s something they must do. Being compassionate, sharing her knowledge and connecting with people while giving them time to work through the process are key to her success as a lawyer.

Vesna Pocuca

, Lawyer & Associate

Trent grew up in Oxley, near Wangaratta, and has practiced law for 16 years. He enjoys the intellectual challenge practicing law provides. Trent’s strengths are his willingness to listen and providing practical solutions in an easy to understand manner.

Trent McGregor

, Lawyer& Associate

Bendigo Office

386 Hargreaves Street
Bendigo, Victoria 3550
Phone: 03 5434 6666
Fax: 03 5434 6667
Email

Castlemaine Office

157 Barker Street
Castlemaine, Victoria 3450
Phone: 03 5472 1588
Fax: 03 5472 4808
Email

Online Meetings

If you can’t make it to either of our offices, we’re happy to meet with you online to discuss your needs.

Book an online meeting

We acknowledge and extend our appreciation for the Dja Dja Wurrung People, the Traditional Owners of the land that we live and work on, and pay our respects to leaders and Elders past, present and emerging.

© Copyright 2022 Robertson Hyetts

Liability limited by a scheme approved under Professional Standards Legislation.

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