Wills and Probate

Estate & Wealth Planning

Wills & Probate

Having a Will is important as it ensures your wishes are complied with after you pass away. Not having a properly prepared and executed Will may result in legal disputes in relation to the management and distribution of your assets.

A common problem occurs when people mistakenly believe that their Will is valid when in fact they are not. It is crucial that you received proper advice from an experienced lawyer and that your Will is prepared in way that it can stand up against potential challenges.

There is nothing worse than trying to manage a contested Will or intestate estate whilst grieving.

At McDonald Milnes we will give you piece of mind that your affairs will be handed as you want them to be and will even hold your Will for safe keeping and will assist your executors with probate.

Grant of Probate

A Grant of Probate is the Order that is made by the Supreme Court, which confirms that the Will that is relied upon is the last Will of the deceased, and that the person(s) nominated as the Executor(s) of that last Will has satisfied the Court that he/she/they are the persons to whom the Court should grant such an Order.

The nominated Executor(s) ‘prove’ to the Court that they are the persons entitled, and hence they will be granted “Probate”.

The Court Rules require that an Application for a Grant of Probate (and/or Letters of Administration) should be made within six (6) months of the Testators death. If the Application is not made within that period, an explanation of the reasons for the delay will have to be given in the form of an Affidavit.

Drafting a Will

Having a valid will in place is the best way to ensure that your estate is taken care of in accordance with your intentions. A legal Will is a simple document which sets out who will be responsible for administering your estate and who the beneficiaries of your estate are eventually going to be.

An estate is divided up according to the ‘rules of intestacy if there is no will in place when a person passes away. This means the deceased has no control over who their assets go to.

Our Wills and Estates Lawyers are experts in their field, We prepare wills with utmost care and skill, to ensure our client’s intentions are clearly reflected in a binding legal document.

A legal Will should be reviewed whenever you:

  • enter into a new relationship;
  • separate or divorce;
  • have children;
  • acquire or dispose of substantial assets.
Letters Of Administration Upon Intestacy

When a deceased dies and he/she has not left a Will, he or she dies “intestate”, and his or her estate passes to the next of kin in accordance with the rules of intestacy as set out in the Succession Act 2006 (the “Act”). This also happens if a deceased leaves a Will which only distributes part of the his/her estate (i.e. where the deceased dies “partially intestate”).

In those circumstances, where a person dies intestate, the Court will appoint an Administrator to carry out the administration of the Estate, and the Court order is then known as “Letters of Administration”. (If a Will validly appoints an Executor but there is still a partial intestacy, Probate will be granted to the Executor with the partial intestacy then being dealt with in accordance with the intestacy rules.)

Letters of Administration are also required if a sole Executor renounces his or her appointment or dies before completing the realisation and distribution of the estate

Self Managed Superannuation Funds (SMSF)

Self-managed Superannuation Funds (SMSFs) are like other super funds, which will allow people to manage their own superannuation investments. One is responsible for running their SMSF in accordance with the law and is required to report to the Australian Taxation Office (ATO) on its operation. All SMSFs are trusts and one must have the following to create a trust:

  • Trustees;
  • A Trust Deed;
  • Property;
  • Identifiable beneficiaries; and
  • The intention to create a trust.

McDonald Milnes’s team of  superannuation lawyers can help you set up and get the most out of a self-managed superannuation fund.

Click here to find out more