What is Wills and Estate law? Most people like to have a plan in place for what happens to their assets after they die. Wills and estates law relates to the administration of Wills and Estates and the distribution of assets upon their death according to the person’s wishes. This blog will explain some of the aspects relating to Wills and Estate law.
What is a will for? A will is a legal document outlining how an individual wishes to distribute their property after their death. It is possible for anyone over the age of 18, or anyone under 18 who is married or is considering getting married, to make a Will. The only requirement is that they have “testamentary capacity”, which relates to them being of “sound mind” and having the intellectual capacity and understanding to make a Will.
Wills and the law, particularly the division of wills and estates can become a complex area for individuals to manage. The role of a Wills and Estates lawyer is to assist their clients document clearly and effectively how they wish their assets to be distributed after they die. This is particularly important if an individual has different kinds of assets, such as shares, property, and valuables, and if the proceeds of the estate will be distributed to multiple beneficiaries. In some cases, the assets may become part of a trust, particularly if one or more of the beneficiaries is a minor.
Upon the death of a Willmaker, a Wills and Estates lawyer will help to create the necessary documents to assist in the administration of their estate by the executor, who is appointed by the Willmaker. The role of executor is very important as this person is responsible for administering the estate and ensuring that all assets are accounted for, all debts have been paid, and all beneficiaries receive their inheritance in accordance with the Will.
An executor will often require the services of a Wills and Estates lawyer for aspects such as probate, which is the official proving of a Will, and providing advice for issues relating to tax and debt liability and identifying and collecting the deceased’s assets.
In the event that a person dies without having left a Will, this person will be described as “intestate.” In Victoria, for example, the Administration and Probate Act 1958 (Vic) and its recent amendments, stipulates how an estate will be distributed if a person dies intestate. Some of the disadvantages of not having a Will include: having no control over the distribution of your estate or who is chosen as guardian for your children; the rules of intestacy not according with your wishes; and your children or grandchildren not receiving the financial protection you desire.
While a person’s Will indicates their wishes regarding the distribution of their assets to beneficiaries, it is possible for a Will to be contested, for example, if an individual believes that the Will does not correctly reflect the person’s wishes, was tampered with, or the person making the Will experienced pressure from another party to alter it. Eligible people may also contest the proposed distribution under the Will if they consider there was inadequate provision was made for them under the Will.
In such situations, an individual can contest the Will, although this can be a costly and time-consuming process, involving specialist knowledge of Wills and Estates law. Some of the skills required to be an effective Wills and Estates lawyer include sound communication, interviewing and interpersonal skills – given that this can be a delicate subject for many people – as well as excellent research, analysis and problem-solving skills.