Wills & Estates

The length of time required to make a Will depends on:

• Whether you’re able to locate all your assets and how much detail you can give us about them;
• Whether you can provide full names and addresses of all your beneficiaries and their relationships to you;
• Whether you’ve considered who gets what, should any of your beneficiaries die;
• Whether you’ve considered who will be your executor, and who will step in as executor, should your first choice be unable to act;
• Whether you have any business assets and how you wish to deal with them;
• Whether it’s necessary to set up a family trust to protect your assets;
• Whether we need to look at ways to minimise potential tax liabilities;
• Whether there’s any possibility of a claim being made on your estate by a person who thinks they should have been a beneficiary, or by a beneficiary who says they should have received more.

For simple Wills, it usually takes one to two weeks to make a Will, but it can be prepared more urgently if required.

Will kits, otherwise known as DIY Wills, are popular because testators don’t have the legal costs of lawyers drafting their Wills. But many people don’t realise how specific the legal requirements are, especially when it comes to signing and witnessing a Will. And some Will kits are sold Australia-wide, even though each Australian State and Territory has its own laws for making a Will.

If a DIY Will is invalid, it’s often not discovered until after the testator’s death. Sorting it out may amount to thousands of dollars in legal fees, paid from the estate. This means that there’s less for the beneficiaries. So, if you’re not extremely careful when using a DIY Will kit, things can go pear-shaped. On the other hand, getting a lawyer to draft your Will may cost you just a few hundred dollars. It’s worth considering.

It’s wise to update your Will whenever there’s a significant life change.

For example:

• You have a baby or adopt a child
• Your partner or spouse dies
• You separate or divorce
• You marry (because marrying will invalidate any prior Will)
• You’re in a de facto relationship
• You move to a new address
• You buy or sell a significant asset

Even if there’s no big change in your life, we recommend reviewing your Will every three to five years.

Power of Attorney:
A Power of Attorney is a document that grants someone else (your attorney) the ability to make legal or financial decisions on your behalf, should you be unable to do so. Your attorney can also sign documents on your behalf. Powers of Attorney are commonly activated when a person is overseas or lacking mental capacity. Your attorney is usually someone you know and trust.

Advance Care Directive:
An Advance Care Directive is a legal document appointing someone to make personal, medical and lifestyle decisions on your behalf, should you be unable to do so. This person is known as your Substitute Decision Maker and should be someone you know and trust. It can’t be someone who is paid to care for you (such as your doctor, nurse or a professional paid carer).

The Substitute Decision Maker must act in your best interests, consider your wishes and if possible, make the same decision that you would have made.

We recommend that you instruct us to draft the following documents at the same time as you make a Will:

• Power of Attorney
• Advance Care Directive

We can draft these documents for you and will provide more information when you book an appointment to make your Will.

An executor is the person responsible for dealing with your estate after you’ve passed away. For your Will to be valid, you must nominate a person to be the executor of your estate.

Executors must locate all the assets of the estate. Some may be sold to pay off any debts. Payment of all debts must occur before finalising the estate. Any remaining assets are then distributed to the beneficiaries according to the terms of the Will.

Executors must act with diligence, and they must finalise the estate as soon as possible. The executor must not be negligent or steal from the estate.

This is the process of registering the Will with the Court. It authorises the executor to deal with the assets and debts of the estate and distribute to the beneficiaries.

Where a person has died and there is a valid Will, the executor may need to apply to the Supreme Court for a grant of probate. This is the process of registering the Will with the Court. Probate is a letter from the Court. It authorises the executor to deal with the assets and debts of the estate and distribute to the beneficiaries according to the terms of the Will. A grant of probate is often an essential step in the process of distributing an estate. Without it, an executor may not be able to legally deal with the estate.

Let’s say you were living in another country and you made a Will while you were living there. If made according to the laws of that country, often it will be recognised by South Australian law.

However, we recommend that you make a new Will as soon as you can after relocating to South Australia. This may make it simpler to distribute your estate, should you happen to pass away.

You can choose what happens to your Will after it’s signed, dated and witnessed.

• We can store it on your behalf in our water-proof, fire-proof document storage room.
• We can also register it with the Law Society of South Australia’s Wills Register, which may help your executor find the original document if necessary.
• Alternatively, you may wish to store it in a safety deposit box at a bank or other institution.

The original document needs to be secure and safe from damage. You should keep a copy for yourself, and provide copies to your executors with instructions about where to find the original Will.

Wills may be found amongst important papers, at banks, in safety deposit boxes, with their lawyer or accountant, or even with the Public Trustee.

Sometimes, it’s a challenge to work out whether the deceased had a Will and where to find it. The deceased’s computer may have some clues about the location of the Will. Or there may be invoices for legal fees that indicate a Will.

The Law Society has a Wills Register that records the location of many original Wills in South Australia. It’s often a good source of information.

We’ve helped many clients locate original Wills. We can help you too. If you’re struggling to find a Will, contact us to discuss your situation.

Superannuation doesn’t form part of a deceased estate.

Many people believe they can deal with their superannuation in their Will, but the truth is that a superannuation fund may not distribute death benefits to the estate.

Without a valid Binding Death Benefit Nomination, the trustee of your superannuation fund has a discretion: they can decide whether to pay your superannuation entitlements to your estate or to any of your dependents, for example, your spouse or children.

So, your dependents may need to make a claim for a superannuation death benefit and prove that they were dependent upon you at the time of your death. This is why it’s usually a good idea to have made a Binding Death Benefit Nomination. It may save your loved ones a lot of time and heartache after you’ve passed away.

If you have any questions about superannuation death benefits and your dependents, we can help.

In some cases, the deceased estate pays the legal costs. But bear in mind that if legal costs come out of the estate, there will ultimately be less for you.

In South Australia, it’s becoming more common for parties to pay their own legal costs for inheritance claims. This removes some of the protection from legal costs that claimants previously enjoyed, but it also deters people who may not have a genuine claim.

You’ll need to carefully consider making a challenge. For example, how likely is it that you’ll be successful? Can you negotiate a settlement with the beneficiaries?

We recommend legal advice from experienced Will dispute lawyers. Our team can help.

Domestic partnerships are like de facto relationships.

In estate claims, two people are domestic partners if:

• They have lived together on a genuine domestic basis (as life partners) for at least three years; or
• For a shorter time if they have a child together; or
• For a shorter time if they have registered their relationship

The South Australian government allows unmarried couples to register their relationships as a way of ensuring certain legal rights without having to marry. For more information, see the South Australian Government’s information page on registered relationships.

Once probate has been granted, the Will becomes a public document.

You can ask to see the Will at the Supreme Court of South Australia’s Probate Registry, or we can get a copy of the Will for you.

If you want to see the Will before the grant of probate, we can try to locate it for you. It may take longer if the person used a Will kit to make their own Will.

If there’s no Will, or if the Will is invalid, different rules and processes apply.

The person is considered intestate (meaning that they have died without a Will) and there will be a separate process to find someone to divide up the estate. For more information, see Estate administration.

South Australian laws set out strict time limits for inheritance claims. It’s usually difficult to get an extension of time to make a claim, but it’s always worth checking.

If the estate has already been distributed, you will not be granted an extension of time to make a claim.

If you’re wondering whether you can still make a claim, even after the time limit has passed, contact us as soon as possible for advice.

A grant of probate, letter of administration with the will annexed or letters of administration is required in estates due to the nature of the assets held by the deceased person that will not be released by a third party without a grant being obtained.

For estates in which the deceased held assets such as land, a nursing home bond, bank accounts exceeding a certain threshold (determined by the bank), shares and even some superannuation policies, a grant will be required.

A grant is not required for assets held jointly with another person and this property can be dealt with by removing the name of the deceased person following their passing to reflect ownership of the surviving owner.

The type of grant will depend on if the deceased left a valid will or not.

If a valid will appointing an executor who is willing and able to act was left by the deceased, a grant of probate will be required.

Where a will was left and no executor was appointed or is willing and able to act, a grant of letters of administration with the will annexed will be required.

Where there was no will, the deceased is deemed to be intestate and a grant of letters of administration should be applied for.

There are many factors that impact on the time taken to obtain a grant from the Supreme Court including;

Whether the deceased left a valid will and the condition of the will or any errors contained in the will. Sometimes, affidavits are necessary to submit with the application, such as:

• an affidavit explaining the condition of a will;
• an affidavit establishing that the will was properly executed; or
• an affidavit explaining the name of an executor being spelt incorrectly or a name being omitted from the will;

Number and type of assets held by the deceased and the time taken for third party asset holders to respond to requests for information;

Availability of details relating to the deceased’s assets and liabilities.

We understand that obtaining a grant is complex and stressful at an already difficult time. We aim to streamline the process for you through out the course of your matter to reduce stress for everyone involved.