WILLS and ESTATES

Your will is a very important document. The purpose of a will is to set out how a person’s assets (the estate) are to be divided after death.

Everybody over the age of 18 years should have
a will. It can make life much easier for family and friends of the deceased.

When somebody dies, all existing arrangements made by the deceased person usually cease. For example, accounts held in the name of the deceased person will usually be frozen except to allow payment of the funeral account.

If you hold a will, you should ensure it is kept current at all times. You should also note:

• marriage - a will is automatically revoked when the person who made it marries, unless it was made in anticipation of a particular marriage or of marriage in general
• divorce - will not revoke the whole will but it could revoke any gift to your former spouse. It will also revoke the appointment of that spouse as executor, trustee or guardian.
• mutual wills - it is common for couples to prepare wills in mutual terms, ie they give each other reciprocal benefits. In such cases it may well be that each party will want the other party not to vary the will, without his or her knowledge or consent. To document such an arrangement, each party can have separate wills but may wish to enter into a Deed as to Mutual Wills.
• alterations to original will - once a will has been signed and dated it cannot be altered by crossing out or writing new clauses. Such alterations will have no effect.
• codicils - is a document outlining amendments to an existing will. We suggest a codicil only be used when a minor change is effected to the will. Thus, if you are changing the executor or adding/deleting a beneficiary, we suggest that you have a new will prepared.

You should keep your original will in a safe place. We have a safe custody facility in our office which is a service free of charge. We guarantee your will will be safe at all times. If we hold an existing will for you, you should advise us of any change in your circumstances to ensure that it is kept current at all times.

Managing deceased estates
For relatively large estates, or where substantial real estate or property holdings are involved, it is necessary to obtain probate of the will from the Probate division of the Supreme Court. A grant of probate effectively:

• certifies that the will produced to the Supreme Court is the last will of the deceased and that it is valid
• formally appoints the executor named in the will to that position
• authorises the executor to distribute or administer the estate in accordance with the terms of the will.

Where there is no will, Section 61B of the Act sets out a statutory offer of distribution of the assets of the estate. This is commonly known as the Rules of Intestacy. In such cases, the deceased person has died intestate. Instead of probate, it is necessary to apply to the Supreme Court for Letters of Administration. Instead of an executor, an administrator is appointed. The administrator is usually one or more of the next-of-kin of the deceased person.

• collect the assets of the estate
• pay any debts and liabilities
• distribute the residue of the estate in accordance with the terms of the will or the rules of intestacy.

Contact Kerrisons if you'd like to know more about the services we can offer you in relation to wills and estates: Phone 02 4655 7066 or email us today.