Wills & Estates

Many people put off the task of preparing a Will and estate plan. However, giving careful thought now to what happens in the future is an important step in protecting your assets and family. We can help you make an effective, binding Will that helps provide certainty for those you leave behind when you die, as well as prepare for unforeseen events so you know you have somebody you trust to help manage your affairs as you age or if you are incapacitated.

Preparing a Will

A Will performs a number of different functions. As a minimum, it sets out how your assets should be distributed when you die and appoints an executor to oversee the administration and finalisation of your affairs. When nominating your beneficiaries, you might provide a detailed list of individual gifts, but often, a Will simply divides the estate in percentages. For instance, if you are married with children, your Will might state that your spouse receives the entire estate unless they predecease you, in which case your children inherit in equal shares. For blended families or those with complex business interests or trusts, your Will might be more complex.

A Will can also leave instructions for your funeral arrangements, set out your wishes for the care of children and pets, and put in place provisions for the financial support of dependents. A testamentary trust can help you look after minor or vulnerable beneficiaries when you die, and we can explain the pros and cons of incorporating such a trust into your Will so you can make an informed decision.

Choosing your Executor

Executors’ responsibilities include a range of tasks such as arranging your funeral, identifying and protecting assets, claiming under insurance policies, obtaining probate, paying accounts, and distributing your assets according to your Will. If the Will is disputed, your executor will be responsible for dealing with the dispute including giving instructions to legal representatives in the event of litigation being commenced.

It is common to appoint one or more trusted family members or friends as your executor/s however this is not always the case or may not be suitable in your circumstances. You should consider whether your proposed executor is:

• willing to accept the role
• capable of managing your estate in terms of their own health and capacity
• suitable to manage your estate in terms of having sufficient time, experience and confidence to deal with your affairs in the manner you would like
• able to act impartially, which is particularly important if you foresee potential disputes over your estate
• likely to outlive you

You can consider appointing a second alternate executor as a backup in case your first choice is unable to act in the role. Alternatively, appointing joint executors to fulfil the role may be a suitable option.

What happens if I die without a Will?

When someone dies without a valid Will, they are said to be ‘intestate’. In that case, someone close to the family will usually need to apply to the Supreme Court of Western Australia for letters of administration.

A grant of letters of administration allows a family member to act as if they are the executor of the estate, although they will have to distribute property according to a statutory formula set out in legislation. These rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin and are designed to reflect society’s expectations. However, they may not reflect what the deceased may have really wanted or their unique circumstances, which can result in:

• family members or friends missing out from an inheritance
• a disproportionate distribution of assets between family members or leaving out more needy beneficiaries
• a distribution to a family member with whom the deceased shared no significant or meaningful relationship

Family Provision Claims

Even when a deceased does leave a valid Will, this does not guarantee that there will be no disputes over the estate. When an ‘eligible person’ is left out of a Will or feels that they did not receive a fair share from the estate, they may be able to apply to the Supreme Court to contest the Will. The proposed claimant must meet certain requirements in order to make a family provision claim. An estate lawyer can provide advice on eligibility and the relevant time limits that apply.

A family provision claim can have long-term implications on the harmony of a family and, although estate disputes can end up in the Supreme Court, it is usually recommended to avoid litigation. There are a number of alternatives that a lawyer can help you explore to reach an amicable outcome, or at least allow the parties to reach an agreement and move on with their lives. For instance, a family provision claim made by a disinherited member of the family can be resolved between the executor of the estate and the claimant with the assistance of their legal representatives. The parties can reach an agreement through mediation, for example, saving the estate the cost of a legal battle through the courts.  

If you need assistance, contact [email protected] or call 08 9221 6820 for expert legal advice.