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 This has been replaced by the Wills Act 1997 (Vic) (‘WA 1997’).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.
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.