Frequently Asked Questions about Wills and Estates in Victoria
1) What makes a will valid in Victoria?
A will must be in writing and signed by the person making it in the presence of two independent adult witnesses. The witnesses must also sign the will, confirming they saw the person sign it. The person making the will must have legal capacity and understand the nature of their assets and beneficiaries. If these requirements are not met, the will may be challenged or declared invalid. Speak with Velos & Velos Lawyers to ensure that your will is valid. Learn more about our services as Wills Lawyers in Melbourne.
2) When should I update my will?
You should review your will after major life changes such as marriage, divorce, separation, birth of children, or buying or selling significant assets. In Victoria, marriage can revoke an earlier will unless the will was made in contemplation of that marriage. Changes in financial circumstances or family relationships can also affect whether your estate plan still reflects your wishes. Updating your will regularly helps avoid disputes and unintended outcomes.
3) What is probate?
Probate is the legal process by which the Supreme Court of Victoria confirms that a will is valid and gives the executor authority to administer the estate. This authority allows the executor to collect assets, close bank accounts, and transfer property. Probate also protects institutions like banks by confirming they are dealing with the correct person. Without probate, many assets cannot be accessed or distributed. Learn more about our services as Probate Lawyers in Melbourne.
4) Do all estates need probate?
Not every estate requires probate, especially when assets are jointly owned or relatively small. However, many banks and financial institutions have their own thresholds and may still require probate before releasing funds. Real estate held solely in the deceased’s name almost always requires probate. Velos & Velos Lawyers can help determine whether probate is necessary in your situation.
5) What happens if someone dies without a will?
When a person dies without a will, they are said to die intestate. Victorian law then sets out who inherits, usually starting with a spouse or de facto partner and children. The process may be more complicated if there are blended families or multiple partners. Applying for Letters of Administration is required to appoint someone to manage the estate.
6) Who can contest a will in Victoria?
Certain people may contest a will if they believe they were not adequately provided for. This includes spouses, de facto partners, children, stepchildren in some cases, and dependants. These claims are called family provision claims and must usually be made within strict time limits. Courts consider financial need, relationship history, and contributions when deciding claims. Learn more about our services as Will Dispute Lawyers in Melbourne.
7) What does an executor do?
An executor manages the estate according to the will. This includes identifying assets, paying debts, lodging tax returns, applying for probate, and distributing the estate to beneficiaries. Executors must act honestly and in the best interests of beneficiaries. If they fail to do so, they may be held personally liable.
8) Can an executor be removed?
Yes, an executor can be removed if they are acting improperly or failing to carry out their duties. Examples include refusing to communicate, delaying the estate administration, or misusing funds. Beneficiaries can apply to the Supreme Court for removal. Courts will only do so if it is clearly in the estate’s best interests.
9) What are Letters of Administration?
Letters of Administration are granted when there is no valid will or no executor willing to act. The court appoints an administrator, usually a close relative. The administrator then manages the estate in a similar way to an executor. The estate is distributed according to intestacy laws. Read more about Letters of Administration in Victoria.
10) What is a testamentary trust?
A testamentary trust is created by a will and holds assets for beneficiaries. It can protect young or vulnerable beneficiaries and offer tax advantages. It also allows assets to be distributed gradually rather than all at once. Many people use testamentary trusts for blended families or large estates.
11) Is superannuation part of my estate?
Superannuation is usually held separately by your super fund and is not automatically part of your estate. The fund trustee decides who receives it unless you have made a valid binding nomination and your superfund has a written notice of your binding nomination to pay the nominated person/s or pay to your estate. If directed to your estate, it is then distributed under the terms of your will. Reviewing super nominations is an important part of estate planning. Read our article on Superannuation and Estate Planning to learn more.
12) What is a binding death benefit nomination?
This is a formal instruction telling your super fund who should receive your superannuation after death. It must meet strict rules and may expire after a few years. If it lapses, the trustee may choose the beneficiary instead. Keeping nominations current ensures your wishes are followed.
13) What is an Enduring Power of Attorney?
An Enduring Power of Attorney allows someone you trust to manage your finances or personal decisions if you lose legal capacity. It operates during your lifetime, not after death. Without one, family members may need to apply to VCAT for authority. It is a key part of any estate plan. Learn more about our services as Power of Attorney Lawyers in Melbourne.
14) What is a Medical Treatment Decision Maker?
This person makes health decisions if you cannot. They must follow your known wishes and act in your best interests. It helps avoid confusion during medical emergencies. This appointment works alongside an advance care directive.
15) How long does estate administration take?
Most estates take six to twelve months to complete. Complex estates, disputes, estate litigation or overseas assets can take much longer. Delays may also occur due to property sales or tax issues. Executors should keep beneficiaries informed throughout.
16) Can estate disputes be resolved without a court?
Yes, many disputes are resolved through mediation or negotiation. This is often faster and less expensive than estate litigation and court proceedings. Velos & Velos Lawyers can help parties reach fair settlements. Courts usually encourage alternative dispute resolution first. Learn more about our services as Will Dispute Lawyers in Melbourne.
17) What taxes apply to estates?
Australia has no inheritance tax, but other taxes may apply. Capital gains tax may be payable when inherited assets are sold. Superannuation death benefits may be taxed depending on the beneficiary. Proper planning can reduce tax impact.
18) What happens to digital assets after death?
Digital assets include online accounts, social media, and cryptocurrency. These should be listed in your estate plan with access details giving full particulars, codes and procedures. Without instructions, they can be difficult to access and my not be recovered. Planning avoids loss of valuable digital property.
19) How are estates with overseas assets handled?
Assets in other countries may require separate probate processes. Local laws in that country will apply. International estate planning can reduce delays and costs. Specialist legal advice is important for cross-border estates. Learn more about our services as International Lawyers in Melbourne.
20) Why should I see a wills and estates lawyer?
A lawyer ensures your will is valid and reflects your wishes. They can advise to minimise tax, if possible, prevent disputes, and structure trusts for asset protection. They also assist executors with probate and estate administration. Professional advice saves time, stress and legal costs later. Learn more about our services as Wills and Estates Lawyers in Melbourne.
How Velos & Velos Lawyers Can Help
At Velos & Velos Lawyers with many decades of experience, we help Melbourne families with wills, estate planning, probate, testamentary trusts, powers of attorney, superannuation, estate disputes, estate litigation and court proceedings. We also assist with complex estates involving overseas property or blended families. Our team provides clear advice tailored to your needs, so your wishes are protected, and your loved ones are supported. If you have questions about wills and estates in Victoria, contact Velos & Velos Lawyers today on 03 8379 1000 or use the Contact Us link on this page to arrange a confidential consultation.
