What Makes a Will Legal?
To make a will that passes muster in Australia, it's got to be in writing, signed by the person making the will (the testator), and witnessed by two people who aren't inheriting anything. This legal document should name an executor, explain what happens to the testator's assets, and who gets them. It's also smart to include backup beneficiaries just in case someone listed passes away. The will can even include instructions about burial or cremation and factor in future remarriages. In essence, the will ensures that loved ones or even a favorite charity are taken care of, just the way the testator wants.
What's the Deal with DIY Will Kits? Are They Risky?
DIY will kits are convenient, especially if you need a quick fix in an emergency—like if you're about to hop on a plane and can't see a solicitor. Wills are trickier than they seem, and little mistakes (like not signing properly or letting a beneficiary witness the will) can cause big problems. A simple error can invalidate parts of the will or leave certain assets tied up due to joint ownership or missing details. Engaging a solicitor helps navigate the many layers of complexity, from family dynamics to tax considerations. It's worth the investment to ensure everything's handled smoothly. But if you can't afford it just follow the instructions that the online will service provides.
So, What's the Job of an Executor?
Being an executor is no small task! This trusted person handles all the nitty-gritty after someone passes, making sure the estate's assets and debts are sorted out and distributed fairly. If you're chosen as an executor, you'll need to balance keeping the peace among beneficiaries, figuring out which assets to sell to cover debts, and maybe even mediating family feuds. It's often a "love job" for the testator, but it can be stressful. Oh, and if the will is contested? You might find yourself in court. Executors can claim a commission for their hard work, which is based on the size of the estate.
What Happens if Someone Dies Without a Will in Australia?
Dying without a will is called intestacy, and things can get messy! A famous case involved Robert Holmes à Court, one of Australia's richest men, who had a will... but forgot to sign it. When intestacy happens, an administrator is appointed (usually the next of kin, but not always if there's family drama). The estate is divided up following a set formula that favors spouses, children, parents, and so on, down to cousins. And if there's no one left, the estate goes to the Crown. So, to avoid your assets landing in the hands of a distant cousin or the government, it's a good idea to make a will.
Do Superannuation and Life Insurance Need to Be Addressed Separately from a Will?
Yep, superannuation and life insurance often fall outside a will. Superannuation payments are triggered when someone dies and usually go to a nominated beneficiary through a binding nomination (sometimes these nominations expire after three years, but don't ask why—it's a government thing!). You can nominate your estate to receive your super, but life insurance can be trickier. It can go straight to a nominated person or be part of the estate if it's set up that way. It's all about who's nominated, so keep those forms up to date!
How Can Someone Contest a Will?
Wills can be challenged for several reasons. Maybe the testator was pressured or coerced (duress) into making certain decisions, or they didn't fully understand what they were doing due to mental incapacity. The most common challenge is when someone claims they weren't provided for adequately—like a spouse or child who feels left out. Courts can adjust wills if they think the testator should have provided more for certain people. Even past relationships (like a close lodger!) might give someone grounds to contest. Moral of the story: it's important to get it right the first time!
Who Can Challenge a Will?
Challenges to wills come from those who feel short-changed. Say the testator didn't update their will after a second marriage and forgot to include their children from the first marriage—that's a recipe for a challenge. And if someone starts giving away their assets just before death to avoid a challenge? The law can reel those assets back into the estate. Basically, if someone feels they were owed more or were financially dependent on the testator, they may have a case to contest the will. Just keep in mind, these disputes often lead to big legal fees that can eat into the estate, so it's best to settle early!
Tips to Avoid Inheritance Feuds
Want to avoid family drama? Make sure most people who could be beneficiaries get something, even if it's small. If the testator really wants to leave someone out, it's a good idea to explain why in a statutory declaration (separate from the will), just in case it goes to court. Maybe that person had a loan they didn't repay, or the testator tried to help them with a personal issue like addiction. A little foresight can go a long way in preventing legal battles down the road.
What Should You Do After a Loved One Dies?
Right after a loved one passes, focus on the funeral. Banks will usually allow funeral expenses to be paid from the deceased's account with proof of death. There's no rush to start the estate process—get the big stuff sorted first, like organ donation if that's relevant, and notifying important institutions (like banks and Services Australia to stop pension payments). After that, gather info on their assets and debts, and then it's off to the solicitor for help with probate.
How Can the Estate Cover Unpaid Bills?
Funeral costs can typically be paid directly from the deceased's account, and other creditors, like the local council or utility companies, will usually wait for probate before demanding payment. Just keep communication open and explain that the estate is being settled. Most companies are patient as long as they're kept in the loop, but if they don't hear from the executor, they might start knocking more insistently!