WILLS AND ESTATE FREQUENTLY ASKED QUESTIONS (FAQs)

What is a Will?

A Will is a binding legal document which sets out a person’s wishes for the transfer of their assets upon their death.

There must be an executor appointed for the Will. An executor is a person who is legally responsible for applying for probate and distributing a person’s estate. An executor is usually a beneficiary under a person’s Will but can be an independent person or a professional.

A Will must be signed by the person who makes the Will. This signature needs to be made in the presence of two independent witnesses. A beneficiary or a partner of the beneficiary should not be a witness to avoid any allegation of influence.

What if you die without a Will?

This is known as dying “intestate”. If you die without a Will, state laws will decide who gets your property after the payments of any debts.

What is a Probate?

A probate is the process of legally proving that a deceased person’s Will is valid. For Western Australia, this probate is overseen by the Supreme Court of Western Australia. Where a person has died with a Will which nominates a person as an executor, the Supreme Court of Western Australia may grant Probate to that person.

What is the effect of a divorce on a Will?

When a person obtains a divorce, their Will made prior to their divorce is revoked unless a contrary intention appears in the Will or there is other evidence establishing such an intention.

What is a Testamentary Trust will?

A Testamentary Trust is a part of a Will that only begins upon the death of the person who made the Will. It is created to safeguard the assets of the deceased for the benefit of others.

There are two main types of Testamentary Trusts Will and they are Optional Discretionary Trust and Protective Trust.

There are some advantages in using a Testamentary Trust. For instance, with an Optional Discretionary Trust will, you could invest the inheritance in the trust and split the earnings between multiple beneficiaries to reduce the overall tax you pay. Other advantages are Protections from creditors as well as protection from family law claims to a certain degree.

What are the assets not covered by Will

Any efforts to gift the following assets in your Will will generally not work:

• Jointly owned property: This is because, on the passing away of one owner, the surviving owner automatically gains 100% of the property. This is regardless of what is stated in your Will.

 However, the exception to this is tenants in common.

• Companies: You cannot gift specific company assets from your company as a company is a separate legal entity. However, you could gift your shares in the company.

• Family Trust: You will not be able to gift specific assets in this trust.

• Superannuation: You generally cannot gift your superannuation in your Will. You will need to make a Binding Death Benefit Nomination (BDBN) with your super fund. There are limitations to whom you can nominate. You can only nominate a dependent such as your partner and children. Alternatively, you can nominate your estate. If you do this, then the super will be distributed according to your Will.

Depending on the circumstances, Wills and Estate matters can be a very complex area to navigate. The above information is provided just as general guidance, and must not be taken as a substitute for professional advice. We strongly suggest that you contact a lawyer for specific legal advice.

At Wills and estates lawyers, we can provide you with specific guidance and advice on your Wills matter. We can assist with various matters such as estate planning, contesting a will and making a probate application. Contact us on contact@wickhamlawyers.com.au for assistance. Alternatively, give us a call on (08) 6156 9821