What Is a Will?
A will is a legal document that sets out what should happen to a person’s property after they die.
A will can identify who should receive assets, appoint an executor to administer the estate and provide directions about how particular property should be dealt with.
The Executor
An executor is the person appointed by the will to administer the deceased estate.
The executor is generally responsible for identifying and collecting the deceased’s assets, paying debts and expenses and distributing the remaining estate according to the will.
A will may appoint more than one executor.
Beneficiaries
A beneficiary is a person or organisation entitled to receive something under a will.
A will may leave particular assets or amounts of money to specific beneficiaries. It will also usually deal with the residue of the estate, being the property remaining after debts, expenses and specific gifts have been dealt with.
Testamentary Trusts
A will can also establish a testamentary trust.
Instead of an inheritance passing directly to a beneficiary, the assets are held and managed by a trustee according to the terms of the will.
Testamentary trusts may be used for asset protection, tax planning or the long-term management of an inheritance.
What Happens After Death?
After a person dies, their property, money and debts form their deceased estate.
The executor may need to obtain a grant of probate from the Supreme Court of Victoria. Probate confirms that the will is the deceased’s last valid will and confirms the executor’s authority to administer the estate.
Not every estate requires probate. This can depend on the type and value of the assets and how they are held.
What If There Is No Will?
A person who dies without a valid will is said to have died intestate.
Instead of the estate being distributed according to a will, Victorian intestacy laws determine who is entitled to receive the estate.
A close family member or next of kin may need to apply for letters of administration to obtain authority to administer the estate.
Making a Will
A will is an important part of estate planning because it allows a person to decide who should administer their estate and how their property should be distributed after death.
Wills should also be reviewed when circumstances change, such as following marriage, separation, the birth of children or significant changes in assets.
Wills and deceased estates can involve important legal, tax and property consequences. Legal advice should be obtained when preparing or changing a will, particularly where an estate involves businesses, trusts, significant property or complex family arrangements.