Will and Estates

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

In this chapter we will explore the nature of wills and deceased estates in the Australian Capital Territory.

It is intended to be a useful aid for both those who are planning their own estates as well as those who are dealing with the estate of a loved one.

This chapter seeks to work its way through each of the steps involved in a deceased estate, starting with making a will, and includes detailed information on:

• Wills;
• Contesting a Will;
• Intestacy: Dying without a Will;
• Superannuation;
• Administering a Deceased Estate;
• Obtaining a Grant of Representation; and
• Funerals, Burial and Cremation in the ACT.

To begin, we will look at the law of succession and how it relates to you as well as some practical steps you can take now, for getting your estate in order.

This chapter is designed as a detailed guide for those who do not have experience in this area of the law, as well as for those who may have some basic understanding, but wish to expand on their existing knowledge.

There may be legal terms throughout the document; the use of with which you are not familiar with. To assist the reader in understanding the meaning of these legal terms we have included a Glossary of Legal Words Used at the end of this chapter.

Succession Law

The Law of Succession and You

At some time or another, everyone will be impacted by the law of succession whether it be through the loss of a loved one, or its application to the administration of your own estate.

You may find yourself engaged in the law of succession at various times during your lifetime, including:

• when you have your own will prepared for you;
• when you are winding up an estate for someone who has died;
• as beneficiary in the estate of someone who has died;
• as a creditor of an estate; or
• as a person who has been disinherited or left inadequately provided for (for more information see Family member not adequately provided for).

It is important to remember that the laws of succession which apply in each State and Territory of Australia differ. Which laws will apply to you will depend on where you were living at the time of your death (sometimes referred to as your ‘domicile’) and where your property is situated. Which laws apply can have a particular impact on those who die without leaving a valid will as the laws of intestacy can vary considerably within each of the jurisdictions of Australia, as well as the rest of the world.

Is Succession Law Do-It-Yourself Law?

The simple answer is that some succession work is do-it-yourself; some is not.

Wills

It is advisable that you have a solicitor draft a will for you as wills can be infinitely complex.

For example:

• Did you know that not all of your assets form part of your estate on your death, and therefore will not be distributed in accordance with your will? Such assets may include property held as joint tenants, superannuation and life insurance policies.
• There can also be taxation consequences for your estate and/or the beneficiaries of your will when passing certain assets to your beneficiaries.
• How does your will apply to assets that you own outside of Australia?
• What happens if you have children from a previous relationship?

A professional working in this area of the law will be able to guide you through these matters and advise accordingly.

Estates

Alternatively, the work of administering an estate can be done by a lay person although generally it is wiser to consult a solicitor, the Public Trustee and Guardian or a trustee company, about the administration of the estate; particularly if the estate is large or complex, or there is a possibility of conflict between the beneficiaries: see The How-to of Administering a Deceased Estate.