A Will is a declaration in writing by the will maker as to:
- what is to be done after death with the assets owned immediately prior to death (the estate)
- who will be appointed as executor/ix to carry out the will-maker’s wishes as to the distribution of the estate, and
- wishes in relation to the disposal of the body.
The fact that a will-maker has or believes they have no assets should not deter a person from making a will as substantial entitlements may be payable to the estate through superannuation or insurance.
The advantages of making a will include:
- the will-maker can dispose of assets as the will-maker intends rather than through the imposition of a statutory scheme of distribution
- a will can provide for the future of a spouse and children, including provision for trusteeship and guardianship
- a will-maker can benefit friends and relatives or charitable bodies who are outside the statutory scheme of distribution
- a will-maker can exercise some control over the retention of improving assets, and the management of the estate, by directions to Trustees
- minimising delay and expense in the administration of the estate, and decreasing the possibility of incurring unnecessary tax or other liabilities.
The administration of a deceased estate can be a complex and emotional task for executors/administrators.
At Avery Commercial Lawyers, we assist executors/administrators to obtain a grant of probate and/or letters of administration and to administer the will in accordance with the will-maker’s instructions.
The executor’s / administrator’s duties can be summarised as follows:
- to locate the last Will of the deceased and to check its terms
- to check the formal validity of the Will
- to arrange for the funeral (normally subject to the deceased’s or family wishes and any request in the Will)
- to prove the Will (if any), and if there is no Will, to locate the next of kinto administer the estate personally
- to collect the assets of the estate and preserve them for the benefit of the estate and the beneficiaries – and arrange insurance if necessary
- to ascertain liabilities and pay the debts of the estate, if any
- to be responsible for income tax returns of the deceased to date of death, and/or the estate to the date of distribution, and to pay such assessments from the estate
- to keep proper accounts and records of estate assets, liabilities and income, and/or distribution and payments
- to distribute the net assets (if any) of the estate among the beneficiaries immediately entitled and obtain receipts