Why make a Will?
A Will simply helps to ensure that the needs of those you care for (i.e. your family, friends, charities or even your pet) are met in accordance with your wishes, when you die. A Will can be designed to include a variety of requests including (but not limited to):
- the distribution of your wealth and assets to your family members
- the provision for children or adults with special needs or disabilities
- the guardianship of your minor children
- meeting your charitable objectives
- the care for your beloved pets.
In short, a Will gives you control over who gets your wealth and assets when you die.
Who will get my wealth and assets if I die without a Will?
In Western Australia if you die without a Will (or a valid Will) then the Court will need to appoint an Administrator and your assets and wealth will be distributed in accordance with a strict set of legal rules (under the Administration Act 1903). The major disadvantages of dying without a Will are that:
- the law sets out how your wealth and assets will be divided, NOT you
- it may be more costly to finalise your estate as there are more formalities and paper work
- you do not get to choose who will manage your estate (whereas under a Will you appoint an executor(s) to do this). [’estate’ means all your real and personal assets.]
Is it solely up to me whom I leave everything to in my Will?
A person generally has the right to determine who benefits under his or her Will. However, in Western Australia the following persons (eligible claimant) may be entitled to claim under the Family Provision Act 1972 (WA) for provision or greater provision out of a person's estate.
In Western Australia, the Family Provision Act 1972 enables the Supreme Court of Western Australia (Court) to change, override or vary the terms of a Will (or the terms of the Administration Act where there is no Will).
An eligible claimant is:
- spouse/de facto partner;
- parents; and
- in certain cases stepchildren; grandchildren; a former spouse or de facto partner
If you are excluding an eligible claimant from your Will it is important to record your reasons why by either inserting a clause in your Will and/or placing a signed statement with your Will.
The Court has a wide discretion based on the facts.
Do I need to review my Will?
Having a Will is one thing but having an up-to-date Will is another matter. There is a general reluctance amongst people to make a Will in the first instance, but it seems people are even more reluctant to review and update it.
The fact is circumstances and relationships change which will impact on your Will.
Generally, people should review their Will every two or three years or whenever a major event occurs in their family, their assets or the taxation laws. Regular review of your Will ensures that it is up to date with your life and also current legislation.
While there are many circumstances in your life that may prompt the need for a review of your Will, the following are some reasons you should contact a solicitor and discuss updating your Will:
- if you change your name, or anybody named in the Will changes theirs
- the purchase or sale of a significant asset
- the death of a family member or of people you have nominated as executors or beneficiaries
- the birth of a child or grandchild
- marriage or divorce
- or - an inheritance or significant change to your financial circumstances.
What is Probate?
If there is a Will, probate is the process by which the Will is proved, by the Court, to be valid.
In order for an executor(s) to get authority to administer a deceased person’s estate they usually need to obtain a document called a “Grant of Probate”. This document is the proof that your executor(s) are authorised to administer your Will. To obtain a Grant of Probate the executor(s) must apply to the Supreme Court.
What if there is no Will? - Letters of Administration
If someone dies without a Will an application will need to be made to the Supreme Court for Letters of Administration. The Letters of Administration can then be granted by Supreme Court to an appropriate person (usually a beneficiary of the estate). That person(s) can then administer the deceased estate.
Speak to one of our friendly team by calling us on 0450 637 163 or complete our online enquiry form and we will contact you.
Disclaimer: Please note that the information provided in our Handout is general in nature and may not be applicable to your particular case. We strongly recommend you seek professional advice to suit your circumstances.