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Having the Last Word

If you do not have a valid Will, then there is no guarantee that the management of your Estate will be according to your mandate. By not having a Will, you lose the right to control and to dispose your property as you wished.

Intestacy arises, so, the method set out in the Administration and Probate Act controls your Estate. The control and dispersal of your assets will be according to a rigid and complex method. It is also costly, takes longer to finish and may be unfair to your family, friends, or anyone that you intended to make a gift.

Possibly, your family may not hurt financially or be worse off with your Estate being controlled by the rules of intestacy. Does your family's future deserve this risk? If these risks do not exist then there are other issues to consider. The management may not be in accordance with how you would have liked or intended. It is also possible that one of your relatives whom you dislike, distrust or someone to whom you owe money becomes Administrator of your Estate. The position entitles him to manage your Estate. You can by cautious and prudent planning of the Will ensure provision for your family's interest, sustenance and support when you die.

Think about the case where a child's parents die and do not name guardians in a Will. If there are suitable relatives, who are willing to apply to the Court and be appointed guardians then there is no problem. On the other hand, if this does not occur, your children will come under the control of the State. The Government may place them in a foster home.

At times, there is no family and you may want your friends or a charity to get your assets. Your friends or the charities will not get anything under your Estate if you do not have a valid Will. It may then go to the Government.

What should you do to prevent this from occurring to your family and friends? Must you even secure that there is skilled, independent and economical management of your instructions?

The answer is simple. Make a Will that exactly sets out your instructions. By making a Will you secure that the chosen Executor will manage the Estate. He ought to understand the legal obligations you have entrusted upon him. This may include the following:

1    Make funeral arrangements;

2    Find out your assets and liabilities;

3    Make the right Application for Probate;

4    Collect any moneys owing to you;

5    Pay out any of your legal debts;

6    Your Executor must protect your business, as a going concern. He may also manage the business in accordance with the terms of your Will;

7    Attend to the preparation of all Government statutory returns, such as, taxation and annual returns;

8    Manage, protect and transfer property and assets in accordance with the terms of your Will;

9    Be responsible to your Beneficiaries, and

10    Legally wind up your Estate.


You can choose your spouse, a relative or a friend to be your Executor. You ought to know that the legal and emotional requirements placed on your Executor will be big. At times, the chosen Executor may refuse the position or does not have the ability to carry out his duties.  


There are a number of Executor and Trustee Corporations that accept this post. You can have the more personalised use of your own Lawyer who also provides this service. The gain to you is that if your Lawyer prepares your Will he ought to be fully aware of your circumstances. Your Lawyer will have a greater comprehension of your mandate. When you order your Lawyer to arrange the Will, ask him whether he is willing to accept your choice of him as Executor.

First, your Lawyer needs to ascertain certain details when you meet about your Will. He needs to get your personal information, so he can advise you and then plan your Estate. Your Lawyer ought to make enquiries from you as to whether you already have a Will and its location. If an earlier will exist, he ought to advise whether to amend or revoke it.

Secondly, he ought to get a register of your Property and Liabilities to consult you on how they are dealt with and handled. This is important from the viewpoint of drafting your Will and helping your Executor.

After you sign your Will, it is prudent to have it locked in a Safety Deposit Box. Give your Lawyer and Executor details of your Will's location. Lawyers, generally provide document storage facilities, free of charge. If you need to use this facility, make inquiry from your Lawyer.  


Ask your Lawyer to outline and show you the document storage facilities that are available. You must please yourself that there is enough safety and confidentiality.

You decide your state of affairs by your last word or the absence of it. Your Will is your responsibility.


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

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