Wills and Estates

We are experienced in all matters relating to simple to complex Wills, Enduring Powers of Attorney, Medical Treatment Decision Makers, Probate, Letters of Administration, Letters of Administration (with the Will annexed), and Estate litigation disputes.

When Should You Update Your Will?

Commencing or ending a relationship may affect the validity of your Will. If you marry or are contemplating marriage in future, your Will becomes revoked unless the Will is expressed to be made in contemplation of that marriage. Your Will is also revoked when a marriage is dissolved. If you make a Will in contemplation of marriage but you do not marry, then the Will may have no legal effect. If your Will is made when you are in a de facto relationship and that relationship ends, the Will may not automatically end, although some recent cases suggest that a gift to a de facto spouse in a Will has have no effect if the relationship ends and the testator then dies without updating their Will. MSA Lawyers recommend reviewing your Will every three to five years or if a significant event occurs or if there is a significant change in your circumstances.

We suggest you review your Will when any of the following occurs:

if you acquire significant assets such as an inheritance;
if you marry, remarry or divorce;
if you enter into or end a de facto relationship;
if you have children;
if you have specified any property in your Will which you subsequently sell or give away, place in trust or a partnership;
if an executor dies or becomes unwilling or unable to act as executor or becomes unable to act
if a beneficiary dies.

If you wish to change, update or make a new Will, you should consult a lawyer at MSA Lawyers. Get in touch today.

Estate Litigation

We can help you with family provision claims, disputing a Will, and any other general claims that may arise. We will attempt to reaching an out of court settlement and if the matter has not resolved within a timely manner, we can progress the matter and make an application to litigate in Court. We will keep you informed along the way to ensure that you are aware of your options and you are kept informed of the progress of your matter.

Deceased Estate Administration

We are experienced in making all applications including:

Probate
Letters of Administration
Letters of Administration (With the Will annexed)

When should I apply for probate?

You are not expected to apply for probate straight away while you are still mourning the death of a family member or friend. Usually, we recommend applying within six months from when the person passed away.

If you apply for probate after the six-month period, you will be required to advise the Court as to why you did not apply within a timely manner. It is still possible to apply after the six month period.

How long does it to take to apply for probate?

Our lawyers will submit your application in a timely manner. Once an Advertisement has been placed on the Supreme Court website, your application for probate can be lodged 14 days from the date that the Advertisement was published.

The Supreme Court can take up to 7-14 business days to review the Application. Once probate is granted, your lawyer will administer and finalise the estate.

How long does it take to finalise and administer the estate?

In order to be protected under the law, the estate should be finalised and administered after six months of probate being granted. Those who do not wish to wait the six month period can still finalise and administer the estate, however the executor will be personally liable for any claims that may arise (i.e. potential beneficiary claim). Our lawyers are skilled to advise you of the possible risks of early distribution and will be able to assess whether it is safe to do so or not.

Your privacy and documentation is very important to us. Please note that we have a free safe custody service that we offer all of our clients and are happy to hold your original documents and deeds with us. We will also provide you with an acknowledgement confirming that we hold the documents and a copy for you to keep in your file.

Frequently Asked Questions

What happens if I cannot locate the Will?

What happens if an Executor has lost capacity?

If an executor has lost capacity and is therefore incapable of administering the estate, the substitute or joint executor can continue the administration of the estate. The only documentation the substitute or joint executor will require to continue the administration of the estate is a certified copy of the death certificate for the executor who has passed away.

What if I do not want to be an Executor?

Even if you have been named as an executor in a Will, it is not mandatory for you to accept the role. If you feel that undertaking the role of executor is too difficult or time-consuming, you can choose to renounce your position.

If you choose to renounce your executorship, the person or persons named as substitute or joint executor will automatically continue the administration of the estate. The only documentation the substitute or joint executor will require is a written letter confirming your renouncement.

If you choose to renounce your executorship and the Will fails to provide for a substitute or joint executor, it will be necessary to obtain Letters of Administration of the Will in order for the estate to be administered.

What if the Executor is refusing to provide me with a copy of the Will?

If you fall within one of the following categories you are entitled to either inspect or receive a copy of the Will signed by the deceased:

mentioned in the Will, whether as a beneficiary or not;
mentioned in an earlier Will, whether as a beneficiary or not;
a spouse, parent or child of the deceased;
a person who would be entitled to a share of the estate if the deceased had died interstate (i.e. without a Will);
a parent or guardian of a minor mentioned in the will or who would have been entitled to a share of the estate if the deceased had died intestate;
a creditor or other person who has a claim at law or in equity against the estate; or
a dependant of the deceased who may apply for a maintenance order from the estate,

You are entitled to either inspect or receive a copy of the Will signed by the deceased.

I am concerned that a beneficiary is intending to file a Family Provision Application. What do I do?

It is our recommendation that if you are concerned a beneficiary may file a Family Provision Application, that the assets of the estate not be distributed for a minimum period of six (6) months following the passing of the deceased. If the six (6) month period expires and no notification has been received, you may proceed with distributing the assets of the estate knowing that no action can be litigated against you for the distribution.

If you, or the beneficiaries of the estate, do not wish to wait the six (6) month period before distributing the assets, we strongly recommend you obtain the written consent of each beneficiary (provided they are over the age of 18 years and are able to consent) which:

Consents to the distribution; and
Confirms they do not intend to make any application that would affect the proposed distributions.
Upon receipt of the consent documents from each of the beneficiaries, you may proceed with the distribution knowing you have minimised any prospect of a claim being brought against the estate.

Are you looking for someone to help?

Let us help you! Call us now on 0403 381 957

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MSA Lawyers

Margaret Girardi
Managing Director