Preparing your Will is an important step in managing your affairs which people commonly put off. If something were to happen, then the Administration Act 1903 would arbitrarily split your estate between your spouse, children and possibly other family members, without taking into account your relationship with each of them, each beneficiary’s needs (such as a disabled family member), whether you wanted to give a particular item to a beneficiary or any other factors. It is not uncommon in these circumstances, for one or more beneficiaries to commence a potentially costly family provision claim where this is inadequate for the beneficiaries maintenance and support in life.
We also frequently see the situation where people have a Will but they have not completely dealt with their estate or their circumstances have changed since they completed their Will, which will complicate the administration of your assets.
Many people are not aware that if you have married or divorced since you made your Will, your Will is automatically revoked (unless made in contemplation of marriage or divorce).
Our lawyers will give you confidence that your Will fully deals with all your assets, ensures the needs of those you care for are met and minimise the risk of disputes over your estate.Our Wills are personally tailored to your needs but are generally classified as either simple Wills or Wills with Testamentary Trusts.
I. Simple Wills:
Majority of people will only need a simple Will. We call it a simple Will because it is simply giving the assets directly to the beneficiaries without creating a testamentary trust out of their estate. This is unlikely to be suitable for people who have significant income earning assets, family trust, Self-Managed Superannuation Fund (SMSF), etc.
II Testamentary trust:
A testamentary trust(s) gives a person maximum flexibility, particularly for asset protection, to look after particularly vulnerable beneficiaries or to minimise tax implications for beneficiaries arising from receipt of particular assets or the income from income earning assets.
III Enduring Power of Attorney (EPA):
An EPA authorises the attorney to do anything which the donor could do with regards to property (if in a form accepted by Landgate) and financial matters during the legal incapacity of the donor. An PA does not cover personal, lifestyle or treatment decisions.
IV Enduring Power of Guardianship (EPG):
An EPG authorises the guardian to do anything the donor could do with regards to personal,medical treatment or lifestyle decisions (such as where you live, services you receive, whether you undergo particular procedures, etc).
V Advanced Health Directive (AHD):
An AHD authorises provides a directive on the kind of medical, surgical and other health care treatments (ie palliative care) you do or do not consent to.
Obtaining a Grant of Probate
You will likely need to obtain a grant of probate in WA if a person dies (regardless of location) leaving assets in WA. Many organisations will not allow beneficiaries of an estate to take any action regarding the asset without providing a copy of the grant of probate, even if a copy of the Will has been provided. The reason for this is to protect themselves against potential frauds, for example where a Will had been revoked by a later Will leaving that person without an interest. Assets which will require a grant of probate include bank accounts, land, boats, shares, superannuation, etc.
In order to obtain a grant of probate, you will need to provide:
(a) the original death certificate from the Department of Births Deaths and Marriages;
(b) the original Will; and
(c) a list of assets and liabilities and the best estimated value of each.
Note that if the Will shows any sign of damage or tampering, you will need to explain why in the affidavit filed with the application for the grant of Probate. In certain situations, the Supreme Court may require an investigation into the matter. If you only have a copy of the Will, you may still be able to obtain a grant of probate but you may need to obtain Letters of Administration instead.
If probate has been granted in another but the deceased held assets in WA, then a re-seal of grant of probate will be required.
Letters of Administration
Where a person has died without a valid Will, leaving assets in Western Australia, you may need to obtain Letters of Administration in order to deal with those assets. The Administration Act 1903 sets out who may apply for Letters of Administration (usually a spouse, child or parent) and what their entitlements from the estate will be. Given the generic formula to determine entitlements, it is common for beneficiaries to agree to alter their entitlement to a fairer split and enter into a Deed of Family Arrangement.
There may be additional fees if there is more than one applicant, if a probate caveat has been lodged, various searches (such as at Landgate) is required or other documents or advice is required.
People who may be entitled to administer and receive a share in the estate include spouses, de facto partners, children (including adopted children but not step children), siblings, parents, grandparents, nieces, nephews and other family members.
Amending distributions from a Deceased's Will
It is not uncommon that beneficiaries look to alter their entitlements under the Will or their statutory entitlement where there is no valid will, such as to disclaim their interest, include additional beneficiaries (like children or grandchildren), tax reasons or to settle a potential dispute.
To give effect to the agreed changes to the entitlements, each of the beneficiaries may enter into a Deed of Family Arrangement. Before executing a Deed of Family Arrangement, each beneficiary will need to consider the nature of the estate assets (ie cash, shares or property), potential tax implications, such as CGT or duties, superannuation, their future needs, etc
Challenging a Will
There are a number of basis on which a Will can be challenged, including if there are concerns about whether the Will complies with the formal requirements of the Wills Act 1970 (WA), if there was undue influence on the deceased, if you believe they lacked capacity to execute the Will (commonly an issue in elderly people with dementia) or if the Will was later revoked. If you do want to challenge a Will, you can lodge a Probate Caveat, which will apply for 6 months, in which time we can prepare an application to the Court.
Challenging an Inheritance/Making a Family Provision Claim
If you believe your entitlement under a Will or distribution under the Administration Act is unfair in that it does not make adequate provision from the estate for the proper maintenance, support, education or advancement in life, you can apply to the Supreme Court for a greater distribution. Therefore, you will need to provide specific evidence about your needs for proper support and how the distribution is inadequate.
An application can be made by a spouse (including de facto partner) or former spouse, child, grandchild or parent. An application must be brought within 6 months after the administrator becomes entitled to administer the estate unless justice requires the application be heard out of time.