What is a will?
A A document that sets out what a person wants to happen to their money and other property after they die. 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 Legally binding or effective. even where the deceased person has changed names and/or address between the time the will was signed and their death. Similarly, a (1) Someone whose money or property is being looked after for them by someone else (called a trustee). (2) A person who is left something in a will, also sometimes called a legatee. See also trust. (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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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.
A person’s property
A deceased person’s property can be land or Any property that is not freehold land (real property)., including goods, shares, deeds and money. 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 All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt.: these people are called the executors. The person making the will should ask people if they are willing to A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. as executors. However, a will is still valid if no The person named in a will as the one who must ensure that the deceased person’s intentions, as stated in the will, are carried out. 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 (1) (wills) Someone who takes legal responsibility for the possessions of a person who has died without making a will, or who is still alive but cannot manage their own possessions. For example, an administrator may be appointed to manage the money, house or other possessions of a person who has a severe mental disability. (2) (companies) A manager appointed by the directors of a company that is in financial difficulty. This may give creditors a better chance of getting their money back because the company can keep trading under supervised management instead of being wound up. with the will annexed.
An executor can deal with an estate only after a will has been approved as valid by the The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. of probates, or by a judge of the Supreme An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. exercising their probate The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area.. This approval is called a grant of probate and the document giving the approval is called the probate parchment.
Probate, in this context, is different from probate duty, which was the former payment of duties to the government on death (currently there are no state or federal probate or estate duties). For more information, see Chapter 9.4: Estates.
What happens if no will is made?
How is the deceased person’s property divided when there is no will?
When a person dies without leaving a will, that person is said to have died ‘intestate’; if a part of a will is not valid, then the person dies Without a will. A person is said to have died intestate if they die without making a will. Their property is then distributed to the nearest relatives in a set order according to law. in relation to that part.
In the case of deaths before 1 November 2017, if no will is made, the deceased person’s property is divided according to the scheme in Part 1 division 6 of the Administration and Probate Act 1958 (Vic) (‘A&P Act’).
In the case of deaths after 1 November 2017, if no will is made, the provisions of Part 1A, sections 70A–70ZL of the A&P Act, as amended, determine who is entitled to inherit the deceased’s intestate estate. This Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. distribution of the estate may be directly against the deceased person’s wishes.
According to the scheme in the A&P Act, any property owned by a deceased person who dies intestate is distributed to the deceased person’s nearest blood next of kin. Under this scheme, the property goes to the surviving spouse or domestic partner, the children of the deceased person, and to the parents or other next of kin (i.e. any blood relations).
‘Next of kin’ can mean even remote relations, and searches may be necessary to find ‘lost’ relatives (s 55 A&P Act). For more details, see the table in Chapter 9.4: Estates titled ‘The distribution of an intestate’s estate to the next of kin under the provisions of the A&P Act for deaths before 1 November 2017’. In the case of deaths after 1 November 2017, where the next of kin is more remote than a first cousin, the deceased person’s estate is Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. to be bona vacantia (i.e. without an apparent owner) and passes to the State of Victoria (s 70ZL A&P Act).
Who is the executor of the deceased’s property when there is no will?
If there is no will, an administrator is appointed by the court. The administrator is usually the person who receives the largest share of the deceased person’s estate under the intestacy rules set out in division IA of the A&P Act.
Under the A&P Act (s 65), a court may order that an executor (of a will) or administrator (in an intestacy) receive an executor’s commission (i.e. a payment for acting as administrator), which is paid from the deceased person’s estate. An executor or an administrator, particularly if they are related to the deceased, may decline to (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. (s 65 A&P Act).
A In criminal law, a person who promises a court that an accused person released on bail will attend court on a hearing date. If the accused person does not attend court, the surety must pay the court the amount of money stated in the bail documents. Also referred to as the guarantor. The sum of money payable if there is a breach is also referred to as the surety. or insurance (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent. may also be required by the registrar of probates in some cases to A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. the proper completion of the estate (s 57 A&P Act; order 7 Supreme Court (Administration and Probate) Rules 2014).
The traditional terms for the deceased person is A person who makes a will. or testatrix, but in this chapter we use the gender-neutral term ‘willmaker’.