When a loved one passes away, it can be a very distressing and emotional time and sometimes it can be more complicated and confusing than expected.
The best case scenario is that your loved one has left a Will, with detailed instructions as to how they would like their estate distributed. A person’s estate includes any assets that they own in their individual name, such as houses, bank accounts and cars.
Joint assets are usually dealt with differently, and it’s important to receive legal advice about planning your estate before you pass away by making a Will.
Executors
An executor is the person appointed by the deceased to carry out the wishes of the deceased person after their death as contained in their Will. The executor is responsible for collecting all of the assets, paying debts and distributing gifts to the nominated beneficiaries. An executor does not need legal advice, but handling estates can be complicated especially if you need to apply for a grant of Probate from the Supreme Court of Victoria, and receiving advice and assistance from a solicitor may make this process a lot smoother and stress free for the executor. The legal costs are usually paid from the Estate at the end, however this does not apply in all circumstances.
Contesting a Will
If a family member has recently passed away, and you have not been named as a beneficiary, or think you should receive a greater distribution than what is provided for in a person’s will, it is important to obtain legal advice about your rights and potential avenues to pursue same.
This requires an application being made to the Supreme Court of Victoria, and the court may order that there be a distribution of assets other than as set out in the Will provided that the court is satisfied the deceased had a responsibility to provide for the maintenance and support of the person applying for a further provision from the estate and the deceased has failed to meet this responsibility. You must be able to produce evidence showing that, even if you are not a family member of the deceased, that the deceased had an obligation or duty to make adequate provision for them and that this was not done.
These kinds of applications must be made within six months from the date a grant of Probate was made by the Supreme Court of Victoria, so it is important to receive legal advice about these matters as soon as possible.
What if there is no Will?
When a person passes away without leaving a Will, or a valid Will, they are considered to have died “intestate” and their estate will be distributed according to the laws of Victoria. This usually means that a surviving spouse receives the first $100,000 of the estate and anything left over is then divided between the surviving spouse and any surviving children in equal shares.
Many people do not want their Estate to be distributed this way, which is why it is so important to make a valid Will.