Wills Attorneys

What is a Will?

A Will is a written document that sets out your wishes for the distribution of your property (sometimes called your 'estate') when you die. It looks after your family and it is your opportunity to make sure things go smoothly on your death.

There are strict legal formalities to be complied with in making a Will. If these are not complied with then this creates many difficulties on your death and the risk that the paper that you signed will not be accepted as your Will.

Typical components of a Will include:

• Appointment of Executors (the people who are to take charge of your affairs when you die)
• Appointment of Trustees (the people who invest your estate for your family if they are not old enough to inherit immediately)
• Gifts of Heirlooms or Gifts to Charity
• Gifts of your general Estate
• The amount of power to be granted or limitations imposed on the Executors and Trustees
• Appointment of Guardians of younger children

A Will is automatically cancelled on marriage and automatically altered on divorce (in SA). You should review your Will when there are major changes in the circumstances of your life.

What if you die without a Will

If you die without a valid Will your property is distributed to your family according to legislation. These are commonly called the Intestacy Rules. It is rare that those rules are anything like what most people write in their own Wills.

As you have not named the Executor and Trustee, there are further Rules to determine who should be appointed. Many people (mistakenly) assume that the Administrator can only be the Public Trustee. The process of dealing with the estate is more complicated. Children get their inheritance at 18 years of age - whilst most Wills stipulate an older age.

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Estate or Succession Plans

Lawyers will often look at Wills in the broader context of your general affairs.

Do you have a Family Trust or an interest in a Family Business? What is going to happen to this when you die? Will other family members be able to carry on the business?

Where outsiders are involved in your business - is there any understanding about what is to happen should you or they die or become incapacitated? Is that documented? How is it funded?

Have the tax implications been considered? Sometimes it is better to move some events forward so that the tax consequences or benefits can occur in your lifetime.

Another issue is whether your superannuation is likely to be paid to your Estate or who the Trustees of your superannuation fund are likely to pay the death benefit to.

Will Kits

Lawyers do not recommend that anyone uses a Will Kit.

Probate & Administration

If you die leaving a Will and substantial assets, then it is likely that it will be necessary to register your Will with the Probate Office. That procedure is known as obtaining Probate. If your assets are smaller and don't involve land, it may be possible for the Executor to gather together your Estate and distribute it without having to go through that process.

Administration is a similar process with the Probate Office for an Estate with substantial assets or land but no Will.

In South Australia Lawyers, the Public Trustee and private trustee companies do this type of work and private individuals do not often try and tackle it on their own.

Disputed Estates

The most common ground of dispute about an Estate is under the Inheritance (Family Provision) Act.

There is a limited category of relatives, spouses and domestic partners who are able to apply. A "domestic partner" is a broader concept than a "de facto spouse". Challenges can arise either because somebody was left nothing, or because what was left to them was not enough.

The provision under the Will (or under the Intestacy Rules if there is no Will) must be unfair and unjust and fail "to provide adequately for the applicant's proper maintenance, education or advancement in life."

There are strict time limits for making an application and you should seek legal advice as soon as possible. Many such disputes, if handled quickly and sensitively, are resolved by discussion, negotiation or mediation rather than by litigation.