Wills & Inheritance

What is a Will

In Australia a Will is required if you wish to choose how your property and belongings will be distributed after you pass away.

The Will normally must be in writing and it sets out what you want to happen to your assets after you pass away. It normally appoints who you choose to be your executor (responsible for distributing your assets) and who is to inherit your assets and belongings. It must be witnessed by at least 2 individuals who are not beneficiaries (who do not inherit anything under the will).

What happens if I do not have a Will

Many people believe that you die without a will then the government takes all your assets and money. This is incorrect (it can only happen if you have no other living relatives).

If you do not have a valid will when you pass away then the government has made laws which set out how your property and belongings will be distributed. In most cases if you die without a will then your assets will be inherited by your spouse. If you do not have a spouse then your children will normally inherit your assets.

It is important that you have a will as without one you have no control over who inherits your assets after you pass away. The rules set by the government regarding inheritance may not be what you want. It can also be more expensive and difficult to distribute your assets if you die without a will.

Islamic Will

If you are Muslim and want your assets to be distributed in accordance with the Islamic Rules of Inheritance then it is extremely important you create an appropriate Will (Islamic Will). Without this document your estate will be divided in accordance with the rules set by the government which are different to the Islamic Rules of Inheritance.

The Islamic Will can also include your wishes as to how you want to be buried and direct your executor to ensure that your body is buried in accordance with Islamic requirements.

There are a number of solicitors who are able to prepare an Islamic Will for you. Please Contact us if you would like further information on Islamic Wills and we can provide details for solicitors who provide Islamic Wills.

Challenging a Will

It is possible to challenge the amount of inheritance you receive under a will. The challenge may be on the basis that you have been inadequately catered for in the Will or that the person making the will lacked sufficient legal capacity at the time the Will was made.

Normally you must be a family member of the deceased or prove that you were in some way financially dependent on the deceased in order to successfully challenge a will.

There are time limits which apply to challenging a will. The time limits vary in each state. In New South Wales the time limit to challenge a will is 18 months from the date of death.

Inheritance

After you die it is the job of your executor to distribute your assets in accordance with your Will. Depending on the size of your estate and type of assets your executor may need to apply to the Supreme Court for Probate. This is normally required where property needs to be transferred or where there are large amounts of money invested or in a bank account.

If you do not have a will your family/beneficiaries will need to apply to the Supreme Court for Letters of Administration (similar to Probate) and to have someone appointed as your executor. This process is normally more costly and time consuming that if you died with a valid will.

Power of Attorney and Enduring Guardian

A will normally deals with what happens after you pass away. It is possible to create a legal document to give someone else authority to act on your behalf while you are still alive.

Power of Attorney – This is a legal document where you appoint someone to act as your attorney with respect to financial matters. This can be useful where one spouse is working overseas and the other spouse needs to access bank accounts or where you are moving overseas and need to appoint someone to handle the sale of your property after you are gone.

Enduring Guardian – This is a legal document where you appoint someone to make medical decisions on your behalf. This document operates when you are not able to make medical decisions yourself (such as when you are unconscious) and a decision must be made about what treatment is to be provided to you.

It is important that you obtain legal advice if you wish the make any of the above documents.