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Tasmanian Wills - FAQ Update

What is a Will?

A Will is a legal document that sets out how a person would like their assets to be dealt with when they die.

Who can make a Will?

Any person over 18 who is of sound mind can make a Will.

Do I need a Will?

Yes every person over 18 who is of sound mind should make a Will. If you die without having made a valid Will the administration of your estate may be complex, expensive and the distribution of your estate may not proceed in the manner you would have wanted.

Is there a register of Wills?

No, in Australia there is no registry of Wills. It is recommended that you notify your executors where your Will is kept.

Who has the right to view the Will?

Whilst you are alive you or anyone you authorise can view your Will. However, when you die the person having the possession or control of a will of a deceased person must allow any or all of the following persons to inspect and take copies of it:

  • any person named or referred to in it, whether as beneficiary or not;
  • the surviving spouse, any parent or guardian or children (including grand children) of the deceased;
  • any person who would be entitled to a share of the estate of the deceased if the testator had died without a Will;
  • any creditor or other person having any claim at law or in equity against the estate of the deceased;
  • any beneficiaries of prior wills of the deceased; or
  • a parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the deceased if the deceased had died without a Will.

How do you change your Will?

Minor changes to your Will can be made by making a 'Codicil'.

What is a Codicil?

A Codicil is a document separate to your Will that outlines the amendments to be made to your Will and confirms that the unamended portion of the Will remains in force.

Do I need to name everything that I own in my Will?

No, you may have specific gifts that you want to leave to a certain person. Any items you own that are not specifically mentioned in your Will, is part of your residue estate.

Should I include my funeral wishes in my Will?

Whilst there is no requirement to do so, it is a good idea to put your funeral wishes in your Will and tell your immediate family.

What happens to my Will if I get married or divorced?

In Tasmania when you get married, gifts under an existing Will are revoked automatically, except for gifts to the person you have married. 

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

Issues may be caused for children from previous relationships when a parent remarries, and automatically (without any intention to do so) revokes gifts to them in a previous Will.

If you are recently married or divorced it is very important to consider whether your existing Will is still appropriate given your changed circumstances.

When should I update my Will?

Consideration should be given to your Will on a regular basis to ensure it accurately reflects your wishes, in particular in the following circumstances:

(a) you get married or divorced;

(b) your Executor dies, or becomes unable or it is inappropriate for them to act as your Executor;

(c) the death of a beneficiary;

(d) you dispose of an item that is the subject of a specific gift in your Will;

(e) you have children; and

(f) you move in with a partner.

What is Probate?

In Tasmania 'probate' is where the Supreme Court declares that the Will of the deceased is valid and registered. The grant of probate by the Supreme Court gives the executors of the Will the authority to administer the deceased estate. When the 30 days waiting period prescribed in the Wills Act has expired and probate has been granted, the deceased estate may be distributed to beneficiaries and/or for the purpose of discharging debts (including funeral and administration expenses).

Not all estates require a grant of probate for the distribution of the estate. When real estate is involved then a grant of probate is required in order to sell the property in accordance with the terms of the Will. Different companies have different rules as to when a grant of probate is required.

Your lawyer will be able to advise you if probate is required. 

What if I die without a Will?

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

In Tasmania your estate is divided according to the rules in the Adminstration and Probate Act. It is a myth that if you die without a Will your estate goes automatically to the government, however, there is no guarantee that your estate will go to your spouse or closest surviving relative. As an example - if you have two children, the first $50,000 of your estate goes to your spouse, and the remainder of your estate will be split equally between your spouse and your children.

To discuss how we can help you with preparing your Tasmanian Will, please contact us on 03 6332 9353 or use our Contact Us form http://www.cormistonlegal.com.au/contact

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