Finding help with wills and estates

A will is one part of an estate plan

A will usually appoints an executor and gives directions for distributing estate assets after death. It can also create trusts, nominate guardians and record other wishes. For the document to work as intended, it must comply with the law of the relevant jurisdiction and should be kept where the executor can locate the original.

A will should be reviewed after significant changes such as marriage, separation, divorce, a new child, death of a beneficiary or executor, a major asset transaction, business restructuring or a move between jurisdictions. The legal effect of these events varies. Do not write on or alter the signed original without advice.

Estate planning may also involve superannuation nominations, life insurance, jointly owned assets, companies, trusts and business succession. Some of these assets may pass outside the estate. The governing documents and ownership structure determine what can be directed by the will.

Complexity can arise with blended families, dependants with disability, overseas property, family businesses, trusts, loans between relatives or a person who may lack testamentary capacity. Early advice can help document instructions and reduce ambiguity, but no plan can guarantee that a dispute will not occur.

Powers of attorney and substitute decision-making documents are local

A will operates after death. Powers of attorney, guardianship appointments, advance care documents and related instruments concern decisions during life. Their names, scope, witnessing rules and recognition differ between states and territories.

Depending on the jurisdiction and document, a person may appoint someone to make financial, personal, medical or lifestyle decisions if particular conditions are met. The role carries responsibilities and should be given to a trusted, suitable person who understands the limits of their authority.

Capacity is decision-specific and can change. A diagnosis alone does not necessarily answer whether a person has legal capacity for a particular act. Where capacity is uncertain, a lawyer may recommend an appropriately focused medical assessment and careful contemporaneous notes.

Do not use a form from another state or territory without checking whether it is suitable and recognised. If an appointment is being used in a way that risks harm or financial abuse, urgent advice from a lawyer, tribunal, public advocate, guardian or police may be appropriate.

Probate and letters of administration are different grants

Probate is generally a court grant recognising a valid will and the authority of the executor named in it. Letters of administration generally authorise an administrator where there is no valid will, no executor able and willing to act, or another statutory reason for an administrator to be appointed. Terminology and application types vary between courts.

Not every deceased estate needs a grant. The Supreme Court of Victoria and Queensland Courts both explain that the need can depend on the type, value and ownership of assets and the requirements of banks, land registries and other institutions. Jointly owned assets may pass to a surviving owner, and a small account may sometimes be released without a grant.

The appropriate court is generally the Supreme Court of the relevant state or territory, but estates with assets in more than one jurisdiction can require resealing or additional steps. Overseas wills, domicile questions and foreign assets need specialist advice.

Court registries provide forms and procedural information but do not advise whether a will is valid, who should benefit, how to resolve competing claims or whether an executor has breached a duty. Those are legal questions for an appropriately qualified adviser.

Executors and administrators have substantial responsibilities

An executor or administrator may need to locate the last valid will, secure property, identify beneficiaries, obtain a death certificate, value assets, identify debts, deal with tax, apply for a grant, collect or transfer assets, keep accounts and distribute the estate according to the will or intestacy law.

The role is not simply carrying out family instructions. The personal representative owes legal duties and may need to balance creditors, beneficiaries, tax authorities, insurers, superannuation funds and court requirements. Premature distribution or failure to investigate a known issue can create personal risk.

Beneficiaries can reasonably ask for information, but they do not automatically control each administration decision. An executor can be a beneficiary, and more than one executor may act. Where co-executors disagree or an executor will not act, legal advice can identify renunciation, reservation of leave, substitution or court options that may be available locally.

Administration can take time because assets, liabilities, tax and possible claims must be addressed. No standard duration applies to every estate. Ask the lawyer for a staged plan, expected dependencies and how professional costs and disbursements will be paid.

Intestacy applies when there is no effective will

A person who dies without a valid will is described as dying intestate. State or territory legislation then determines who is entitled to the estate and in what shares. The result may not match informal family expectations or the deceased person's unwritten wishes.

Intestacy rules consider recognised family relationships and can be complicated by multiple partners, children from different relationships, adoption, uncertain parentage or relatives overseas. The administrator must apply the law rather than decide what feels fair.

Partial intestacy can occur if a will does not effectively dispose of every estate asset. A lawyer may need to interpret the will, identify the statutory distribution and advise about an application for administration or directions.

Do not assume the government automatically receives an intestate estate. That is generally a remote outcome after the statutory relatives and other entitlements have been considered. The correct result must be checked under the law where the estate is administered.

Estate disputes can concern validity, provision or administration

A dispute may allege that a will was not properly made, the deceased lacked capacity, the document was affected by undue influence, a later will exists, an eligible person was not adequately provided for, or an executor is not administering the estate properly. These are distinct legal issues with different evidence and remedies.

Not every disappointed relative can challenge a will. Eligibility for a family-provision claim, the factors considered and the filing period are set by state or territory law. Validity disputes also require careful evidence about the document, signing, instructions, capacity and surrounding circumstances.

Strict and potentially short time limits can apply. The relevant event may be death, a grant or another statutory point, depending on the jurisdiction and type of claim. Obtain direct advice from a lawyer in the relevant state or territory promptly rather than relying on a general national guide.

Preserve the original will, prior wills, file notes, correspondence, medical material and estate records. Do not remove items from the deceased's property or distribute disputed assets merely because family members agree informally. Mediation can resolve some disputes, but court directions or protective orders may be needed.

The first conversation should identify the role and jurisdiction

Clarify whether the lawyer is being asked to advise the will-maker, executor, administrator, beneficiary, attorney, guardian or another interested person. Those roles can have competing interests, and one lawyer may not be able to act for everyone.

For planning work, expect questions about family, assets, ownership, superannuation, insurance, businesses, trusts, overseas connections and the people proposed for responsible roles. For an estate, the lawyer will usually need the death certificate, original will, asset and debt information and details of possible beneficiaries or disputes.

Ask what is included in the scope, whether a court grant appears necessary, which other advisers may be needed, how fees and court costs are handled and how original documents will be stored. A lawyer can explain options and risks but cannot promise that a document will never be challenged or that an estate will finish by a particular date.