Will, probate. superannuation

Wills and Estates 101 – The importance of a valid Will

19 May 2020

In the first of our introductory series which looks into the world of Wills, Trusts and Estates, we speak to Rosa Bazzanella a Senior Associate at Rigby Cooke Lawyers about some of the questions she frequently encounters in her work.

What is a Will?

A Will is a written document which declares how your estate assets are distributed on your death. In Australia, if you do not have a valid Will your assets will be distributed in accordance with the laws of intestacy of the state in which you own your property. In Victoria your assets could end up in the hands of distant family members you would not wish to benefit or worse in the hands of the Victorian government.

A valid Will in Victoria requires the following:

  • Testator (Willmaker) must be at least 18 years of age;
  • Willmaker must have testamentary capacity;
  • The Will must be in writing;
  • Signed by the Willmaker in the presence of at least two independent individuals over 18 years of age;
  • The Will should be dated; and
  • Willmaker must sign it with the intention of making a Will.

Who can you leave your estate to?

In Victoria, you have freedom of testation, which means you can leave your assets to any person, charity, trust or company you wish.

However, there is one caveat to the principal of freedom of testation. If you leave an individual out of your Will for whom you had a moral obligation to provide for, the courts have the jurisdiction to order provision to be made for that individual from your estate.

If I die without a Will does the Australian Tax Office inherit my estate?

No, the Australian Tax Office (ATO) won’t inherit your estate. If you die without leaving a valid Will (‘intestate’) then your assets will pass in accordance with intestacy laws of the state in which you are domiciled or with regard to real property pursuant to the laws where the property is located. The distribution of assets on intestacy in Victoria is set out in the Administration and Probate Act 1958 (Vic) (‘the Act’).

If you die leaving a spouse and one or more children of the marriage then 100% of the estate will pass to your surviving spouse, however if you died leaving children who were not the biological children of your surviving spouse, then the outcome is very different. Your spouse will receive $467,520 plus fifty percent of your estate and your children will receive the remaining fifty percent of your estate equally. Not only may this be an unsatisfactory outcome, the costs and time associated with making an application to administer an estate without a Will can, and often do, outweigh the costs of preparing a basic Will in Victoria. As they say prevention is always better than a cure.

Your estate will not pass to the government unless there are no living relatives who qualify under the law of intestacy. With the recent law changes this has resulted in assets passing to government funds much earlier.

Do we have to have an official reading of the will?

We have a lot to thank Hollywood for its over the top portrayal of lawyers holding a gathering for family members for the reading of a Will. In Australia, and in particular Victoria, we do not hold a reading of the Will and there is no legal requirement for the executor to do so.

Our recommendations.

If you already have a valid Will, review its contents every three years, particularly if your personal, financial or family circumstances change significantly.

At Rigby Cooke, we understand the emotions and complexities around Wills, Trusts and Estates, and can help take the pain out of implementing your estate planning. We’ll work with you to fully understand your personal and financial situation and in conjunction with your wishes and will tailor a solution that meets your needs and testamentary objectives.


Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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