Melbourne Wills & Estates Lawyers
Wills & Estates, one of the oldest, if not the oldest, legal practice.
We’re sure many of you have thought about, or even made arrangements, for the preparation of your “Last Will and Testament”. Unfortunately, because of the historical nature of this area of law, it can come with a ‘fear factor’ due to the often old-style language and ‘stuffy air’ approach.
But we at DSA Law are here to tell you it doesn’t have to be that way!
Do you need a Will or a Trust?
If you don’t understand why you need a Will. If you know you need one but aren’t sure where to start, the same article should give you an idea. However, not many people’s lives these days fit onto a ‘Do it yourself Will kit’ template.
With accountants and advisers setting up family trusts and trustee companies all over the place, with superannuation funds becoming billion dollar companies with call wait times to rival Centrelink and with the seemingly ever increasing split family (whether it resembles the Brady Bunch style or just the unfortunate result of family law proceedings) arrangements, you are perfectly entitled to feel a bit overwhelmed.
As for trusts, these can operate so that your Will is less susceptible to challenge as they can operate to ensure key assets bypass your Will and are therefore not considered ‘assets of your estate’.
They can also offer tax and other commercial advantages (the explanation/suitability for which we will provide after conferring with your accountants, or refer you to some good options if you don’t have an accountant).
So how is DSA Law different to other options?
Again, that’s where DSA Law can help.
Our Will drafting process is simple. We provide you with a template questionnaire that you can fill out yourself, or with the assistance of your family or advisers. Once we’ve assessed the answers, we’ll give you an estimate of our likely fees. For example, a ‘vanilla’ Will is likely only going to cost you $440 inc. GST. If you and your partner want Wills that work in harmony, then it’s simple, the price is double that for an individual, namely $880 inc. GST. If however you have one of those complex accounting/legal wealth arrangements, we’ll assess and give you our estimate tailored to your personal situation.
From there, we’ll draft your Will in language that you can either understand without needing to use the original Oxford Dictionary, or take the time to explain any ‘ye-old English’ phrases and why we have to stick with them.
As for implementing trusts, the approach is many and varied but rest assured, if there is a structure you’re seeking to implement, we can put it together for you.
What are the key considerations?
First and foremost, for both Wills and Trust arrangements, you need to know what you own and therefore understand what you’re intending to give away, and moreso to whom you intend to give it!
In particular for your Will, you need to consider what your moral obligations are to those persons in your life that, under the law, might have a legal claim to a portion of your estate, even if they’re estranged or otherwise not within your intentions. If you think someone isn’t going to be able to manage what they get with any responsibility, then it is not a matter of just cutting them out but moreso a matter of structuring your Will so their interest is not in their complete control but still gives them provision that the law says is adequate.
Then there’s the question of who is going to ‘execute’ your intentions after you’ve gone, hence the term “Executor”, or be in charge of your Trust arrangements, that is, your Trustee. If you don’t have someone you think is suitable, that’s OK. We can explain how the appointment of a solicitor or independent executor/trustee works and what type of costs would be involved.
What do I do if a loved one passes away?
There are a number of things that can be done by next of kin/named Executors, without any particular formality aside from having a certified copy of the relevant Will or Trust documents.
In the ideal world, we all know where the Wills of our nearest and dearest are kept, or at least true copies. If you only have a copy, it should tell you at least who drew the Will and, if you’re the named executor, you can request its release to you. Once you have the original Will, you/the Executor will need to make an application for Probate.
This process can be simple. It can also be deceptively complex.
What is a common misunderstanding though is that the lawyer who drew the Will does not have to be the one that helps you apply for Probate. They might’ve been the choice of the Will-maker but they might not be your ‘cup of tea’. Unless they’ve been named an Executor themselves, there is often no good reason not to use your own choice of lawyer to guide you through the process.
Once Probate is granted, the Executor is charged with the responsibility of ‘executing’ the intentions set out in the Will. There are timeframes within which it is wise for this to be undertaken and considerations along the way that, if you’re well advised, will lessen yours and the Estate’s exposure to criticism and liabilities.
We here at DSA Law can ensure you attend to all of those steps, or just the mandatory ones, depending on the instructions you give and the intentions in the Will.
Is the Will worth the paper?
Sometimes, no matter how well the Will is drafted and how well intentioned the provisions are, the law allows certain eligible persons to seek further provision from an Estate, whether they’re in the Will or not.
Disputes arising in this regard can be exhausting for the Executor, expensive for the Estate and by association its beneficiaries and drawn out. Unfortunately, there’s only so much that can be done in that regard, however what we can assure you is that if you choose DSA Law to stand by your side in such circumstances, we will ensure the minimisation of these unfortunate consequences by combining the resources available from the law, strategic decision making and our extensive experience.
We therefore look forward to assisting you with your Wills, Estates and/or Trust queries.