Wills, Estate Planning & Administration of Estates FAQs

A Will is a legal document which sets out your intentions as to how your assets and liabilities are to be distributed in the event of your death. A Will appoints an Executor to be responsible for carrying out the directions set out in your Will. A Will can also nominate who you wish to be the guardian of your children and can allow you to express your wishes regarding cremation and burial.

Why do I need to make a Will?

Creating a Will can ensure that when you die your assets and possessions go where you want them to. A Will is a way to ensure that your wishes are clearly expressed for those who you care about, your family and loved ones.Through your Will you can set up trusts for young children, give specific gifts, leave money to charity, appoint people you trust to look after your affairs and much more.

If you die without a valid Will, your wishes may be ignored, and your family and loved ones may be left with heartache, confusion, expense and legal difficulty in sorting out your estate.

What is my estate?

People often talk about your Will dealing with your estate, but what is your estate? Assets that form part of your estate can include:

Real Property (houses, land etc)
Vehicles;
Shares;
Bank accounts;
Personal possessions;
Superannuation*
Life Insurance*

* Superannuation and Life insurance may not be part of your Will unless your estate is specifically nominated as a beneficiary.

What is an Executor/Trustee and how many do I need?

Someone you trust to carry out your wishes and directions in your Will. Your Executor is also known as your Trustee under your Will.

If you have minor children you will need to appoint two substitute Executors, in addition to your partner (if they are appointed as the primary Executor).

We believe it is important to include substitute Executors in the event that the person you appoint is unwilling or unable to carry out their role. If you do not appoint substitutes within your Will, if your Executor can’t or won’t act, your Will will be invalid.

Your Executor doesn’t need to know the legal aspects of estate planning as most Executors seek guidance from solicitors in conjunction with administering the estate. Simmons Wolfhagen can assist your Executors with finalising and administering your estate. Please do not hesitate to contact our Estate Planning and Probate department for assistance.

Do I need to list everything I own in my Will?

Not necessarily. If you have specific gifts you wish to give, such as jewellery to a niece or your favourite watch to your son, this can be listed in your Will, however often if you have extensive personal possessions such as paintings, artwork, or just items of sentimental value, we include a clause which allows you to make lists of these items, and who you want them to go to, and include this with your Will. This allows you the flexibility to buy and sell items, and to change your mind and amend the list from time to time.

Your solicitor will discuss which approach is best for your Will depending on the individual details of your estate.

The items which are not listed in your Will fall into what is called the ‘residue’ which is gifted through your Will.

Can I leave my share of my house to someone else?

Whether you can leave your share of property to someone else depends how you own that property. If you own your house jointly with another person, it can be owned as what is known Joint Tenants, or as Tenants in Common.

If you want to leave your share to someone other than the other owner, you will need to check with your solicitor that you own the property as Tenants in Common. Property in Joint Tenancy automatically passes to the survivor on the death of a co-owner and does not form part of the property distributed through your Will.

Is Superannuation part of my estate?

Supernnuation does not ordinarily form part of your estate distributed through your Will. You should check with your superannuation fund who you have nominated as the beneficiary of your policy in the event of your death. It is vital to regularly update any nominations as some lapse after a period of only three years! There are ordinarily restrictions on nominations under your superannuation policy, which limits beneficiaries to either your spouse, your children, or your estate.

Is life insurance part of my estate?

Life insurance does not ordinarily form part of your estate distributed through your Will. You should check with your insurer who you have nominated as the beneficiary of your policy in the event of your death. Life insurance can be a good way to provide for children from previous relationships as it does not ordinarly go through your Will and so is less open to challenge.

Do I need to make sure my funeral expenses are taken care of first in my Will?

Your Executors must pay expenses and liabilities of your estate prior to distributing your assets. This means you don’t have to worry that your beneficiaries will have to pay your debts.

Can I appoint Guardians for my Children under my Will?

If you have children under 18 you can appoint a guardian (or guardians) for them in your Will. Generally a guardian is only appointed on the death of both parents.

The Family Court retains jurisdiction over minor children, so if no guardians are appointed under your Will, the Court will decide where your children are then to live, and who makes legal decisions for them. The Court can also decide in the event the person you nominate is not appropriate for the role.

What about if I get married or divorced?

Legislation in Tasmania provides that on marriage, gifts under an existing Will are revoked automatically, except for those to the person you have now married. This can leave issues for children from previous relationships if their parent remarries, and unknowingly revokes gifts to them in a previous Will.

Divorce in Tasmania automatically revokes those gifts in a Will made to your former spouse.

If you are making a Will and planning to marry or divorce, make sure you let your solicitor know, who can ensure that appropriate clauses are in your Will and your wishes are safeguarded.

If you are recently married or divorced it is vital to consider whether your existing Will is still appropriate.

Can I leave my estate to charity?

Many people leave gifts to charities through their Wills. It is important to consider competing claims on your estate, as to leave all your estate to a charity and none to your spouse or children leaves your Will open to challenge and can create heartache and expense for all concerned, including the charity!

Think also about why you want to give the money; is it for a specific purpose or just for the general purpose of the charity?

Make sure you identify the charity correctly, many organisations have similar names and it’s important to ensure your gift goes where you intend it to.

A gift of the ‘residue’ of your estate, or even a share of it may be an appropriate gift in your Will.

Who can challenge my Will?

In Tasmania, legislation called the Testator’s Family Maintenance Act 1912 (“the Act”) applies to ensure that dependents are appropriately provided for under a person’s Will. A dependent under this Act can be a spouse, a child, and in some circumstances a former spouse entitled to maintenance.

If a person entitled to make a claim feels that your Will has not made ‘adequate provision’ for their ‘proper maintenance and support’ they have the ability to bring a claim against your estate. What is deemed to be adequate varies in individual circumstances, and it is vitally important to discuss the varying claims on your estate with your solicitor during the course of making your Will.

How often should I update my Will and why?

You should consider your Will regularly to ensure it still accurately reflects your wishes, in particular if you marry, divorce, separate or any of the following occur:

(a) you, or anyone in your Will changes their name;

(b) Your Executor dies, or becomes unsuitable to act as your Executor;

(d) If you dispose of property the subject of a specific gift in your Will;

(e) If your family situation changes, for example you have children, you move in with a partner;

(f) the value of your estate changes significantly, for better or worse.

*Please note the above are only examples and if you are unsure if you Will is still appropriate, please contact us to discuss.

What happens if I don’t have a Will?

Your family and loved ones will need to apply to the Supreme Court of Tasmania for what is known as Letters of Administration which can be both confusing and a source of conflict if there are differing opinions within your family as to what you wanted, and who should look after your estate.

In Tasmania the Adminstration and Probate Act applies and your estate is divided according to the rules in that Act. Your estate does not automatically go to the government, nor is it guaranteed to go entirely to your surviving spouse. For example if you have two children, the first $50,000 of your estate will go to your spouse, and the remainder will be split equally between your spouse and your children.

What’s a power of attorney, and do I need one?

A power of attorney is a legal document which allows a person (your “attorney”) to act on your behalf in relation to financial matters. Powers of attorney can be general, or limited to specific acts, for example signing documents in relation to a house purchase. Powers of attorney can also be ‘enduring’ which means they continue to have effect, even after you lose mental capacity.

A power of attorney can be of assistance if you have jointly owned property and one party is unable to sign documents, for example if that person is going overseas. They can also assist where the person giving the power of attorney (the “donor”) is elderly or incapacitated and requires assistance in everyday transactions such as going to the bank.

Powers of attorney must be registered with the Land Titles Office before they can be used. Unless a power of attorney is required immediately, once signed it can be kept in safekeeping on your behalf so that it can be registered later if necessary.

A power of Attorney can be revoked at any time, provided the donor still has mental capacity. A power of attorney does not give the attorney the power to make medical or lifestyle decisions on your behalf.

What is an Enduring Guardian, and do I need one?

An enduring guardian is someone appointed in accordance with the Guardianship and Administration Act to make decisions in relation to medical treatment and lifestyle decisions on your behalf in the event you are unable to do so. Unlike a power of attorney, an enduring guardian cannot make decisions, agree to medical treatment on your behalf whilst you retain the capacity to make your own choices.

If you are concerned that your wishes may not be honoured or that your family may disagree in the event of your incapacity or illness, you can appoint someone you trust as your enduring guardian. The instrument appointing your guardian can give your guardian general powers to make decisions regarding your health and medical treatment, or can specify certain restrictions, such as you do not want blood transfusions, or that you do not wish to be resuscitated in certain circumstances.

An instrument appointing an Enduring Guardian must be registered with the Guardianship Board, however there is currently no registration fee to do so.

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