You can have the last word if you have a Will that guarantees the management of the estate will be according to your instructions. You maintain the right to control and to dispose your property as you wish by nominating the executors and setting out their ability to deal with the property in the Will.

If there is no Will, intestacy arises. In this situation, you do not have control over the dispersal of your assets. The administration of the intestacy is rigid, complex, is costly, takes longer to finish, and may be unfair to family, friends, or anyone that you intend to make a gift. It is unlikely that most of us intentionally wish to create problems however they can easily occur and intended beneficiaries may lose benefits or entitlements.

Cautious and prudent planning of the Will can ensure provision for the beneficiaries’ interest, sustenance, and support. Parents of children under 18 must consider appointing legal guardians in the Will if they die. Often there is no problem if there are suitable relatives willing to apply to the Court for appointment as guardians. However, if this does not occur, the children will come under the control of the State and the government agency may place the children in a foster home.

If there is no family and you want friends or a charity to receive a gift then unless there is a Will leaving them a gift they will receive nothing. Planning and preparing a Will that exactly sets out your instructions to the executor will guarantee beneficiaries will inherit the gifts. The executor will manage the estate and deal with the legal obligations you have entrusted which may include:

a)    Funeral arrangements

b)    Ascertain the assets and liabilities

c)    Apply for probate

d)    Recover any money owing to the deceased

e)    Pay out any legal debts

f)    Protect any business as a going concern or manage the business according to the terms of the Will

g)    Prepare government statutory returns, such as, taxation and annual returns

h)    Manage, protect and transfer property and assets according to the terms of the Will

i)    Be responsible to the beneficiaries, and

j)    Finalise the estate.  

EXECUTORS

One can select at least two executors who will manage and finish all directions specified in the Will. An executor can be a spouse, a friend, beneficiary, or lawyer. Most executors can charge fees to act in this position. The legal and emotional requirements placed on the executor will be enormous and sometimes, an executor may refuse the position or does not have the ability to carry the legal functions and duties.

NEED MORE INFORMATION

Behan Legal assists and advises on these important issues. For an appointment call 03 9646 0344.