What Is a Will?
A “Will” is a legal document providing directions as to how your assets (“estate”) are to be treated after your death.
A Will must have an “executor” to manage your estate and carry out the directions in the will.
“Beneficiaries” are the persons or organisations named in the Will to receive your assets, after payment of any estate debts.
To be valid, your Will must be up-to-date and be drawn up in accordance with the law.
Applying for Probate: What does it involve?
“Probate” is a formal order of the Supreme Court proving the validity of the will.
The Court requires certain evidence including the original will, a summary of assets and liabilities, death certificate and evidence of advertising the intention to apply for the grant of Probate.
A grant of Probate will normally take about 3 weeks after application is made. You can make an application any time after the death certificate is available.
Typically Probate is required when the deceased person owned an interest in land or when there are large bank or share investments.
When is a Will not valid?
If the Will has been incorrectly signed, not witnessed, or it can be established that the person making the Will (the testator) was suffering from a mental illness or incapacity or was forced by someone to sign the Will, the Court may refuse to grant Probate.
The Court would then consider an application for Probate based on an earlier Will or might accept other evidence as to the intentions of the deceased person as to the distribution of their estate.
What if there is no will?
The government does not receive the estate
Our law sets out an order nominating persons to receive the estate when them is no Will, with the deceased person’s spouse, children and immediate family benefiting.
Instead of Probate, Letters of Administration must be applied for. This requires a person to be nominated to act as Administrator.
Additional expense and searches must be undertaken where there is no Will. The procedure can often be complicated and time consuming.
Who can challenge a Will?
In theory anybody can contest another person’s Will.
To succeed, the challenger must prove they were promised something, had a genuine expectation or had made significant personal or material contributions to the welfare of the deceased person.
In general terms, a challenge to a Will must be made within 18 months from the date of death.
Estate Management: What is the role of the Executor?
The executor is responsible for getting in the assets of an estate, paying the debts and distributing the residue as provided in the Will.
A failure to do so will result in the executor being liable at law to the beneficiaries for any loss or decline in value of the assets.
An executor should be aware of the taxation implications (both income tax and capital gains tax) effecting an estate.
In normal situations, stamp duty will not be payable on estate assets transferred in accordance with the Will. Death and estate duties were abolished in 1981.
Wills and Estates: What are the legal fees?
We usually charge a set fee for preparing wills. Our fees are very reasonable in relation to the peace of mind and other benefits a proper will provides you.
The costs of obtaining a Grant of Probate are regulated by the court.
Where we undertake additional work in administering an estate, such as dealing with organisations where the deceased person held assets, our solicitors’ time is charged at hourly rates.
Additional expenses including Court filing fees, advertising and search fees will also be payable.
Please talk to our solicitors if you have any questions regarding our fees and these expenses, both of which will be itemised and explained to you upon commencement of any work.
Powers of Attorney
A power of attorney is a document by which you nominate another person (the attorney) to act on your behalf.
The “attorney” can be nominated to act only in certain situations, or for a limited period only (such as when the person is away on holidays). Alternatively, the power of attorney can be “enduring” and last for the period of the person’s life.
As the attorney often has the power to deal with a person’s assets, the attorney should be some one you know and trust. It is often wise to appoint joint attorneys so that all documents must be signed by both persons.
Our solicitors can advise as to the circumstances where a power of attorney is appropriate and the cost of its preparation.