Wills and Estates Services
for Clients in Victoria and
NSW
Patford-Smith Legal Services delivers legal wills and estates solutions across Victoria and NSW. Contact our fully qualified and experienced team for a personalised service to help you get your affairs in order.
We are available to provide assistance in cases where a loved one has lost capacity and there is a need for the formal appointment of a guardian and/or administrator.
In situations where you have concerns regarding the behavior of a current guardian and/or administrator, we can offer guidance by explaining the available options, which may involve pursuing their formal removal.
What is a Legal Will?
At law, a will (also known as a last will and testament) is a legal document in which the will maker (‘the testator’) sets out how they would like their property (the ‘estate’) to be dealt with after their death.
Wills should be updated as your life circumstances change. An example of a common change that may require an update to your Will is the birth of a child or grandchild. Other examples include a change in marital status or financial position.
Thinking of making your own Will? There’s a few reason why you should think again.
- You risk not expressing your intentions clearly enough
- You risk not drawing-up your Will properly
- You may create a tax liability that your beneficiaries will have to pay
There are four things you need to ensure your Will is legally valid:
- It must be in writing (typed or handwritten)
- You must have capacity (you must know what you are doing)
- It must be signed, and
- Your signature must be witnessed by two other people who also need to sign the will.
If You Need To Get Your Affairs In Order, We Are Here To Help
What is a Power of Attorney?
A power of attorney is a legal document you use to nominate a person to act on your behalf in financial and property matters. This person will act as your attorney – but they don’t have to be a solicitor, they can be a friend, a family member or a business partner.
A general power of attorney
A general power of attorney is typically given for a specific period and is often used in regards to matters of business. You may wish to appoint a general power of attorney if you are heading overseas or into the hospital. If you were to lose capacity due to illness or accident during this time, the general power of attorney would stop operating and therefore the appointed attorney would not be able to make financial decisions on your behalf.
How do you apply for Probate in Victoria?
Applying for probate in Victoria, Australia, involves several steps to legally validate a deceased person’s will and allow the executor to administer the estate. Here’s a step-by-step guide:
- Locate the Will: Ensure you have the original will and any codicils (amendments).
- Death Certificate: Obtain the original death certificate from the Registry of Births, Deaths and Marriages.
- Value the Estate: Assess and document the value of the deceased’s assets and liabilities.
- Advertise Intention: Publish a notice of your intention to apply for probate on the Supreme Court of Victoria’s Probate Online Advertising System (POAS). This must be done at least 14 days before submitting the application.
- Prepare Documents:
- Application for Probate: Complete the probate application form.
- Affidavit of Executor: Include details about the deceased, the will, and the estate.
- Affidavit of Publication and Searches: Confirm that the notice of your intention to apply for probate was published and that a search for any previous applications was conducted.
- Affidavit of Assets and Liabilities: List the deceased’s assets and liabilities.
- Original Will and Death Certificate: Include these with your application.
- Lodge Application: Submit the completed application and supporting documents to the Probate Office of the Supreme Court of Victoria. This can be done online through the RedCrest-Probate system or by post.
- Pay the Fee: Pay the required probate application fee, which varies based on the value of the estate.
- Respond to Requests: The court may request additional information or documents. Respond promptly to any such requests.
- Grant of Probate: If everything is in order, the court will issue a grant of probate, officially authorizing the executor to manage and distribute the estate according to the will.
For detailed information and access to forms, you can visit the Supreme Court of Victoria’s Probate Office website.
How do you apply for Probate in New South Wales?
Applying for probate in New South Wales, Australia involves several steps. Here’s a general outline of the process:
- Determine if Probate is Required: Probate is typically required if the deceased person owned assets solely in their name or as a tenant in common, and the asset is over a certain threshold (usually around $50,000). If assets were jointly owned or held in trust, probate might not be necessary.
- Gather Required Documents: You will need the following documents:
- Original Will: Ensure you have the original will of the deceased.
- Death Certificate: Obtain an official death certificate from the Registry of Births, Deaths and Marriages.
- Asset Information: Compile details of the deceased’s assets and liabilities, including bank accounts, properties, investments, and debts.
- Complete the Probate Application Form
- Forms: Obtain the Probate Application form from the Supreme Court of New South Wales website or registry.
- Information Required: You will need to provide personal details of the deceased, details of their assets and liabilities, and information about the beneficiaries named in the will.
- Prepare Affidavits
- Affidavits: Prepare and swear (or affirm) affidavits from the executor and any witnesses to the will. These affidavits confirm the authenticity of the will and the deceased’s intentions.
- Lodge the Application
- Submit Application: Lodge the completed probate application form, original will, death certificate, and affidavits at the Supreme Court of New South Wales. You may need to pay a filing fee, which varies depending on the value of the estate.
- Await Probate Grant
- Probate Grant: Once the court processes your application and is satisfied with the information provided, they will issue a Grant of Probate. This document authorizes the executor(s) named in the will to administer the estate.
- Administer the Estate
- Estate Administration: With the Grant of Probate, you can now collect assets, pay debts, and distribute the estate according to the terms of the will.
Additional Considerations:
- Legal Advice: If you encounter complexities or are unsure about any aspect of the probate process, seek legal advice from a solicitor specializing in estates and probate.
- Timeframes: The probate process can vary in duration, depending on factors such as the complexity of the estate and any potential challenges to the will.
For detailed guidance specific to your situation, consult the Supreme Court of New South Wales website or seek professional legal advice.