A Will is a document in which you explain what you want done with the assets that you own solely in your own name when you die. These assets typically consist of real estate, bank accounts, cash money, investments, cars and personal or household belongings that you own. A Will ensures that your testamentary wishes are carried out upon your death and your hard-earned wealth goes to the people you want it to go to.
Without a Will it can be hard to work out who should apply for permission to deal with the deceased’s estate. The spouse, de facto partner or next of kin should apply to the Probate Office of the Supreme Court for Letters of Administration. The application can be complicated and it may be a whole lot easier to get assistance from someone with experience. If the application is successful, the court grants Letters of Administration to someone who then has the authority to deal with the estate.
Legal Aid WA has further materials about the process of dying without a Will
The executor deals directly with your estate; he or she pays your debts and divides what remains of your estate among the “beneficiaries”, the people named in your Will to receive a share of your estate. The executor has an important and responsible job to do.
You should choose an executor that you trust and who is likely to still be alive when you die. He or she may be a trusted family member or friend. It helps if he or she is a good book-keeper and an efficient communicator. If you prefer, you can appoint more than one executor and both can act together as co-executors. You should also appoint an alternate executor if the first executor is not able to act. If you have a complex estate or investments or need someone to take over the operation of a company, you should name a professional executor.
Typically, a guardian will be appointed to look after your children if they are younger than 18 when you die. This will avoid confusion in your extended family as to who should care for your children if both you and the other parent die before the children become adults. You must make sure your will allows the executor to pay funds to the guardian for the expenses of raising and educating the children.
If your Will doesn’t properly provide for your spouse or de-facto spouse, or children or parent, they may be able to make a claim under the Inheritance Act (WA). If successful, the WA Supreme Court has the power to change your Will to give them a share of your estate. Therefore, if you intend excluding any such dependents from your Will, or giving them less than they might reasonably expect, be sure to consult with a lawyer about this situation. An experience Wills lawyer can advise you on how to avoid claims on your estate under the Inheritance Act (WA).
If you marry or divorce, your Will is automatically revoked and you will need to make a new Will unless, for example, the Will says that it was made in contemplation of your new marriage or divorce.
At CB Wills™ we provide a clear path for secure storage of your Will at no cost.
In fact, the Public Trustee’s WA Will Bank is a community service that keeps Western Australian Wills safe from loss, theft or damage. Original Wills are stored in a purpose-built, fireproof vault and also scanned and electronically stored for added security.
There is no charge for people who deposit their own Wills in the WA Will Bank. While alive, only the testator or their lawyer can retrieve the original Will.
After death, only the executor (or other authorised person) can access the Will and a copy of the death certificate and approved identification (or written legal authorisation) is required to do so. There are no charges to retrieve the Will but all requests for Wills must be made in writing.
Alternatively, you can store your original Will in a secure safe place, like a safe or safety deposit box, where it cannot be stolen, altered or destroyed.
Probate is the process by which the executor must apply to the Supreme Courts of WA to confirm that a Will is legally valid; it is the process of proving and registering in the Supreme Court the last Will of a deceased person. It is usually the executor of your Will who administers the estate and handles the disposal of your assets and debts.
In order to get authority to do this, they usually need to obtain a legal document called a Grant of Probate. For assistance with the process of obtaining a Grant of Probate, it is usually helpful to consult a specialist Wills and Probate lawyer. Details about Probate, including filing fees, can be found at the website of the Supreme Court of Western Australia.
Birth or death of children, grandchildren or other close relatives, or other changes in your family circumstances.
In recent years, there have been significant and continuous changes to the taxation, superannuation and social security laws impacting upon wills and deceased estates. These changes emphasise the importance of regularly reviewing your will to ensure it continues to comply with your wishes.