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A Will is a legal document that allows you to determine how and who your assets are distributed to following your death.

The role of your Executor(s)

Your Will allows you to nominate a person or persons who will manage your estate after you die and make the important decisions about the estate administration, including organising your funeral and burial or cremation. This person or these people are known as your executors.  

The person (or persons) you appoint as your executor should be someone that is responsible and that can carry out the role with competency. It should also be someone you can trust. If you choose someone that is older than you, you should also appoint another person to act in their place in the event of their death or if they are unable to carry out the role.

Care of your children

A Will also allows you to record your intentions about who you want to be responsible for any children you leave behind who are under 18 years old. This is referred to as a testamentary guardian.

Risks of not having a Will

If you don’t make a Will, you may leave your loved ones in a position of uncertainty after your death.

If you die without a Will, you are determined to have died intestate. A formula known as the ‘Intestacy Rules’ will determine how and to whom your estate is to be distributed. This formula is contained in the Administration and Probate Act (1958), an Act of Parliament in Victoria.  

Dying intestate may create family disputes and disagreements.

Many people think they are too young to make a Will or find it uncomfortable thinking about their death. 

However, by leaving the distribution to chance, people you didn’t expect or want to receive your assets may be in line to receive some or all of your estate. If you don’t leave a Will, the administration of your estate may also be delayed, causing your family stress and unnecessary expense.

Reviewing your Will

If you have made a Will, you should review it from time to time to ensure it continues to reflect your wishes. You should also review it when there has been a significant change in your circumstances, for example:

  • Where an executor or a beneficiary has died;
  • Your executor is no longer able or willing to act;
  • You may have divorced or separated;
  • You have married (marriage voids a prior Will unless the Will is made in contemplation of that marriage);
  • You have had a baby;
  • When your financial position changes significantly;
  • You have provided for gifts that you no longer own;
  • A beneficiary (for example a child or sibling) separates from their spouse; and
  • Your children have had children of their own.

Blended families

Many blended family arrangements give rise to disputes after a death. If you want to make a Will and leave out a child or a partner, you should get advice about this before making your Will.

In Victoria, a child or partner who has been left out of a Will, or who has not received adequate provision from the Will for their proper maintenance and support, can contest the Will.

If a person does contest your Will, your estate may meet all or some of the costs of the challenge, including the costs of the person who has disputed the Will. It also may delay the administration of your estate so that your intended beneficiaries may be waiting a long time to receive their share.

Emera Smith will discuss the possibility of a Will contest with you, at the time of drafting your Will and provide you with advice about what you should do, such as writing down the reasons for leaving out a child, partner or other relevant people.

Need help to draft your Will?

Emera Smith provides experienced and professional advice in the drafting of your Will to ensure your documents are comprehensively written and legally sound. You can have peace of mind during the process that you are safeguarded as much as possible against uncertainty, doubt and legal disagreements after your death.

We will ensure the documents protect your possessions and assets and ensure they are distributed in accordance with your wishes after your death.

The process will involve a meeting to take your instructions and talk you through the options. We will then prepare your Will and meet you in one of our offices to sign it.  

We can store your Will securely for no additional charge, giving you peace of mind that your Will is safe and that your loved ones can easily and securely get a hold of it when the time comes that they need to.

Signing your Will during COVID-19

During COVID-19, there are restrictions on signing Wills in a face-to-face environment. We have alternative options in place.  

Emergency legislation was introduced to allow Wills to be executed and witnessed remotely. You will require a webcam so that you can participate in an audio-visual link (such as Zoom) as well as a printer and scanner.

There will be certain situations where remote signing of your Will, will not be possible. Contact us today and we can discuss your circumstances and let you know whether remote signing in your situation is possible.   

Once restrictions are lifted fully, our team is available to meet you face to face at any of our three offices to execute your Will. Depending on your location, we also do home visits.

How can we help you today?

03 8625 8957 info@emerasmith.com.au

We're here to help you move forward with your legal matter. Understanding where you stand by getting the right advice early will give you clarity and certainty.

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