family & wills lawyers | business advisory & accountants

Wills and probate team

We know the loss of a loved one is traumatic. That is why Farrar Gesini Dunn’s wills and probate team focuses in making the administration of a deceased estate as easy as possible for those who are left behind by working with you to see the process through.

We help the executor of a will to obtain a grant of probate. When someone dies without a will (intestate), we help the family seek and obtain letters of administration. We try to educate our clients at all times so that they understand the process.

Once we have obtained the grant of probate or letters of administration we help the executor to draw together the assets and distribute the estate to the beneficiaries.

We use modern technology to make our specialist skills available to executors and family members across Australia. Location is not an issue – we help executors and family members to administer deceased estates across Australia and can help you with estates in all Australian jurisdictions.

We are recognised experts in estates law, so you can be confident that you will get high quality, clear, and accurate advice.

Our deceased estates team can help you with:

  • Obtaining a grant of probate or letters of administration.
  • Administering trusts arising from wills.
  • Establishing testamentary trusts.
  • Understanding the meaning of a will.
  • Understanding your duties and responsibilities as an executor or beneficiary.
  • Advising in relation to the rights of beneficiaries of a will or deceased estate.

Powers of Attorney allow other people to make decisions and do certain things on your behalf while you are still alive. This might be because you are overseas, or because you no longer have the capacity to do it yourself. This can cover making decisions about your medical care, dealing with your property and even day-to-day things like operating bank accounts and paying bills.

In Victoria you can also have a Supportive Power of Attorney. This means someone can be appointed to help you do legal and administrative tasks, such as obtaining information and making decisions. This is useful for people who have decision making power but need help to exercise that power.

Read about Wills, Administration and Probate here

The first duty of an executor following a person’s death is to deal with the body.

The executor is entitled to organise the funeral and pay for the reasonable funeral expenses from the estate.

If the deceased was receiving a pension then you should contact the pension provider (for example, Centrelink or ComSuper) to notify them so that the pension can cease.

After this, there is little you can do until the Death Certificate arrives, which may take 2 to 6 weeks.

While there is little that you can do immediately following someone’s passing a solicitor can help to gather together, in advance, information and forms that will be necessary to progress the administration of the estate.

The costs of a reasonable funeral is an estate expense. This means it should be paid by the estate.

It is common for the funeral home to ask you to pay the funeral bill and many family members will share the cost or pay it outright themselves. This can lead to financial hardship.

If you do not have the resources to meet the cost then you can produce the invoice to the deceased’s bank and they will may pay the invoice for you.

The bank will prevent access to the deceased’s accounts after they are notified of the account holder’s death. This rule does not apply for joint accounts.

A grant of probate is a court order. The effect of the order is to confirm the validity of the Will annexed to the order and gives the executor the authority to deal with the estate assets in accordance with the terms of the Will.

The short answer is maybe.

A document can have effect as a Will even if it not properly executed, is not referred to as a ‘Will’, or contains information that is not related to what happens to property after the person’s death.

A lot depends on the document, the circumstances of its creation, and whether it was properly executed.

Read more about Will Kits here

The word ‘intestate’ is a legal term used to describe the circumstances where a person has died without a Will.

In these circumstances, the person’s estate is distributed according to an inflexible statutory formula that varies with that person’s circumstances. Unfortunately, it seldom reflects the deceased person’s wishes.

Intestate estates are complex and often require legal advice.

Letters of administration is a court order that confirms the administrator’s authority to administer and distribute the estate. In this sense it is similar to a grant of probate.

The distribution is most often according to the laws of intestacy. However, sometimes it may be with reference to a Will.

Estate planning involves the organisation of a person’s legal and financial affairs so that your assets are distributed to your intended beneficiaries in an orderly and tax-effective manner.

A properly constructed estate plan involves the integration of all your legal and financial matters.

A properly constructed estate plan involves the following:

• Will: A will is the central part of any estate plan. It sets out how you want your assets to be distributed and can be as straightforward or comprehensive a document as necessary.
• Power of Attorney: Your power of attorney operates in circumstances before death where you may be suffering from either a temporary or permanent legal disability and are unable to make decisions for yourself.
• Testamentary Trust: A testamentary trust can be used in conjunction with a will to provide for ongoing control of your assets after death. It may be used when there is a concern that the assets are at risk of dissipation through blending of families, divorce or legal proceedings involving your children.
• Superannuation: This does not form part of your estate but it should be considered as part of your estate plan. There will be some occasions where a superannuation death benefit should be paid to your estate and others where it is more beneficial for the superannuation to be paid directly to your nominees.
• Financial Goals and Insurance: This is included for completeness so that all matters relating to your financial affairs, including insurance, are taken into account and are not forgotten.

The executor is the person who administers and carries out the terms of your will. The appointment of an executor is done as a term of your will. Your will creates a trust and your executor of the estate is the person who holds the estate in trust. That person becomes the trustee for the deceased estate trust. The executor is responsible for administering the deceased estate in the best interest of the beneficiaries of the estate.

If you are a diligent reader of our articles, then you will already be aware of the importance of having a valid Will. However there are other things that you should do to make the lives of your executors and beneficiaries a lot easier. We have put together a checklist of some things that you ought to do before you die – an “if I kick the bucket then…” list so to speak. The checklist should be kept in a safe place identifying where the original Will and Enduring Power of Attorney are kept. The list should include either a copy of the Will or at least mention the date on which it is signed.

The checklist should include:

Accounts and Investments:
The BSB and account numbers for any accounts or credit cards you have as well as the details of any shareholdings and real estate.

Insurance:
Include sufficient details of policies such as the policy number and type of insurance.

Motor vehicles:
The registration number and VIN.

Advisers:
If you have an accountant, financial planner, lawyer or other professional advisor include their contact details. If you have a business include details of where the company records are kept.

Important documents:
If important documents (such as certificates of title), valuables or personal items are being held in safe custody elsewhere you should identify the location.

Your digital life:
Include all your email login in details and loyalty scheme account details. This includes your membership to social media and cloud data sites so your executors and family may be able to access your on-line data, including books or music files.

Direct Debits:
If you have any direct debits in place you should include details so that they can be cancelled pending a grant of probate.

Superannuation:
Your most recent superannuation statement(s) should also be included. If it is self managed super, the deed and financial statement should be included.

And lastly, tell your executors:
Make sure your executors know where the list is!
If you follow these steps, it will make the job of your executor far easier. You would be surprised by the amount of time and money that can be saved when an executor does not need to spend weeks searching through your belongings and paperwork trying to figure out the details of your life.