The Law Handbook 2024

896 NOTE The law in this chapter is current as at 1 September 2023. Introduction This chapter explains the process of administration of an estate, whether the deceased person has made a will or not, and goes through the steps to be taken and the rules that apply. Any reader who is making a will would find it useful to read the explanation of how an estate is processed (see Chapter 9.4: Estates). This explains why it is important to write a will in the right way, and why it is important to choose an executor carefully. The standard will provided at the end of the chapter is a model that is simple and straightforward. More complex instructions in a will are best checked or prepared by a lawyer before the will is signed. The law relating to wills can be complex. Few things are more distressing than a bequest that fails because of a badly drafted will. The law relating to wills was previously set out in the Wills Act 1958 (Vic) (‘ WA 1958 ’). This has been replaced by the Wills Act 1997 (Vic) (‘ WA 1997 ’). The WA 1997 affects wills made after 20 July 1998, and wills of people who died after that date leaving a will, whenever executed. The WA 1958 may still affect wills made before 20 July 1998. If there is any doubt about which statute applies to a particular will, get legal advice. NOTE Traditionally, terminology used in the area of wills and estates is gender-specific. For example, the person nominated by the deceased person to carry out directions regarding property in the will is called an ‘executor’ if male and an ‘executrix’ if female. Another, more modern approach is to use the gender-neutral term ‘personal representative’. However, the term ‘executor’ has been used throughout this chapter as most people are still most familiar with this term. The law of wills What is a will? A will is a document that sets out how a person wants their property to be distributed after their death. If a person wishes their property to be disposed of in a particular way after they die, then there is no other way to ensure this occurs than by making a will. A will is valid even where the deceased person has changed names and/or address between the time the will was signed and their death. Once a will is made, it remains effective until it is revoked/ replaced by a subsequent will. Similarly, a beneficiary (i.e. any person who receives benefits under a will) can receive benefits under a will where such changes have occurred, although it may be necessary for that person to provide evidence of their identity. A will is still valid if it is not dated. Note that the term ‘will’ includes a codicil, which is a formal addition (or PS) made to an earlier will. NOTE A deceased person’s property can be land or personal property, including goods, shares, deeds, money or electronic assets. This property is also known as the deceased person’s ‘estate’. In a will, one or more people are named to carry out the deceased person’s directions for disposing of their estate: these people are called the executors. The person making the will should ask people if they are willing to act as executors. However, a will is still valid if no executor is appointed. If no one is named as executor in the will, the person who receives the greatest benefit from the will is usually the person entitled to administer the will as administrator with the will annexed. An executor can deal with an estate only after a will has been approved as valid by the registrar of probates, or by a judge of the Supreme Court exercising their probate jurisdiction. This approval is called a grant of probate (s 7 Administration Wills 9.3 Contributor: Lydia Kinda, Barrister