Why a Will?
The only way you can ensure that your assets go to whom you want after you die is to make a Will.
Without a Will, the law has a formula which sets out who is entitled to the assets in the estate. The formula may not distribute the assets in the way that you would have wanted.
With Lees Luke, making a Will is a process that requires a consideration of your financial resources, your wishes and your obligations towards your dependents.
What matters does a Will deal with?
A Will usually deals with:
- the payment of debts,
- powers and duties of the executor/trustee in administering the estate,
- the appointment of executors, trustees and guardians,
- directions as to the disposal of the body.
Why do I need a Solicitor?
You should have a solicitor draw the Will as there are certain legal formalities regarding making a Will. The Courts have a discretion to over-look a failure to comply with the required formalities but Court cases:
- can be lengthy; and
- can cause distress and hardship to relatives.
When is a Will automatically revoked?
A Will is automatically be revoked when you marry, unless the Will contains a statement of contemplation of marriage to that person.
Any gift to a former spouse is automatically revoked upon divorce (unless you stipulate otherwise).
Who should hold my Will?
Most clients ask us to hold their Will. They are provided with a copy of the Will that they should keep with their important papers.
You should review your Will regularly to ascertain whether it has been affected by any changes in circumstances or intention.
How to obtain a Will or a copy of a Will?
Provide evidence of the person’s death, either:
- a certified copy of the Medical Certificate Cause of Death; or
- a certified copy of the Death Certificate.
Provide a certified copy of your photo ID to prove who you are.
If you are the executor, the original of the Will can be provided to you.
The following other persons would also be entitled to a copy of the Will:
- someone named or referred to in the will,
- someone named or referred to in an earlier will as a beneficiary,
- the surviving spouse, de facto partner or issue (that is the children or children of the children),
- a parent or guardian,
- someone entitled to a share of the estate if the deceased person had died intestate,
- any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate (without a Will),
- any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
- any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
- any attorney under an enduring power of attorney made by the deceased person,
- any person belonging to a class of persons prescribed by the regulations.
You would need to prove that you fall within one of these categories. For example if you are a child then you could provide a certified copy of your birth certificate.
If all else fails, search the on-line Probate Registry of the Supreme Court once an executor has filed a notice of intention to apply for Probate. Once Probate is granted a copy of the Will may be provided by the Probate Registry of the Supreme Court.
Wills & Estates