A Will is a document which distributes a person’s Estate after they die. Certain formal requirements need to be met for a Will to be valid and these include:

1.    The Will must:

          • appoint an Executor, someone who overseas the administration of the Estate;
          • distribute all of the person’s Estate, known as the “residue”, and not just specific items such as property, bank accounts and shares; and
          • be signed and dated by the person.

2.    The person’s signature must be witnessed by 2 people not mentioned in the Will; and

3.    The person must:

  • have had the mental capacity to understand the nature and effect of their Will; and
  • not have been unduly influenced or coerced into making the Will.

I have been appointed Executor - what do I need to do?

The role of an Executor will depend on the deceased’s Estate. Generally, an Executor will need to deal with asset holders before the assets are released to the Executor. Asset holders usually require the Executor to: provide certified copies of the Death Certificate and Will; sign Indemnities and obtain a Grant of Probate.

A Grant of Probate is a document issued by the Supreme Court which confirms that the deceased’s Will is valid and that the Executor is entitled to administer, and the beneficiaries entitled to benefit, from the Estate. An Executor should see a solicitor who can prepare the Application for Probate.

Once the assets have been collected, the Executor needs to pay from the Estate assets any debts of the deceased or their Estate before distributing the remaining assets in accordance with the Will.

I have been appointed Executor - what are my rights?

An Executor stands in the shoes of a deceased and administers the Estate. This includes organising the funeral and disposal of the deceased’s body.

The Executor holds the deceased’s assets on Trust until such time that they can be distributed to the beneficiaries. This is usually after Probate or until six months have elapsed from the date of death.

Executors also have a duty to preserve the assets of an Estate, including investing funds for minor or disabled beneficiaries or collecting rent from a deceased’s property.

Dispute as to Burial/Cremation - who decides? 

The law says that an Executor has the right to the custody and possession of a body for the purpose of burial.

Any wishes that a Deceased has noted in his/her Will are not binding on an Executor, as a Deceased has no property in his/her own body.

However, if a Deceased has left written instructions that his/her body is not to be cremated, then an Executor will be liable if he/she disobeys the Deceased’s instructions.

If a Deceased does not leave a Will, and so has not appointed an Executor, then the next of kin has the right to bury.

If there is no next of kin, then the law says that the person in whose house the Deceased dies has the right to bury.

If you pay money for a Deceased’s funeral, you are entitled to have same reimbursed to your from the Deceased’s Estate.

For more information on Wills contact Krystle Wolthers on (02) 4626 5077 or email Krystle on kwolthers@marsdens.net.au