Hemmings Legal

It is a question people sometimes think but rarely say aloud:

“Once I’m gone, I won’t be here to worry about it, so why should I care what happens?”

It is an understandable thought. Making a Will means confronting death, family relationships and decisions that may feel uncomfortable. It can seem easier to leave the problem for another day or for someone else to resolve later.

But estate planning is not really about what happens to you after you die.

It is about what happens to the people you leave behind. It is also about protecting yourself while you are still alive.

Your family will have to deal with what you leave behind

When someone dies, their assets, debts, personal possessions and legal affairs do not simply resolve themselves.

Someone will need to:

• locate important documents;
• arrange the funeral;
• identify and protect estate assets;
• contact banks, superannuation funds and other organisations;
• determine who is legally entitled to the estate;
• apply for probate or letters of administration where required;
• pay outstanding liabilities; and
• distribute the estate.

A properly prepared Will gives your family a clear plan to follow.

Without one, your loved ones may be left trying to work out what you would have wanted while also dealing with grief.

“They already know what I want”

Perhaps you have told your family who should receive your home, savings or jewellery. You may believe everyone understands your wishes and will deal with things fairly.

Unfortunately, conversations and informal promises do not replace a valid Will.

People may remember conversations differently. Family circumstances can change. Even relatives who usually get along can disagree when emotions, money and grief are involved.

A Will records your instructions clearly and formally. It can identify:

• who will administer your estate;
• who should receive your assets;
• who should care for your children;
• what should happen to important personal belongings;
• how younger beneficiaries should be protected; and
• what should happen if a beneficiary dies before you.

Clear instructions reduce uncertainty and make it easier for your family to understand and respect your decisions.

Dying without a Will does not mean the family will simply sort it out

If you die without a valid Will in Victoria, you die intestate.

Victorian intestacy laws then determine who is entitled to your estate. The result may not reflect your personal relationships, family circumstances or actual wishes.

A person will generally need to apply to the Supreme Court of Victoria for letters of administration before administering the estate. This differs from probate, which confirms the authority of an executor appointed under a valid Will.

The process can create additional work, delay and expense for the people left behind.

Making a Will allows you to choose your executor and provide a clear legal structure for administering your estate.

Estate planning is also about what happens while you are alive

The thought that you will be gone overlooks an important part of estate planning. You may be alive but temporarily or permanently unable to make certain decisions.

An accident, stroke, illness or cognitive decline could affect your ability to manage your finances or communicate your wishes.

An enduring power of attorney allows you to appoint someone you trust to make specified personal or financial decisions if required. The appointment can continue if you lose decision-making capacity.

A medical treatment decision maker may make medical treatment decisions for you if you cannot make those decisions yourself.

These documents must generally be prepared while you have the capacity to understand and make the appointment. Your family cannot simply create an enduring power of attorney for you after you have lost capacity.

Estate planning therefore protects you, not only your beneficiaries.

A Will can reduce the burden on the person you trust

Being appointed as an executor is a significant responsibility.

Your executor may need to deal with banks, government agencies, lawyers, accountants, property, personal belongings, beneficiaries and the Supreme Court of Victoria.

A carefully drafted Will can make that responsibility much clearer. It can give the executor appropriate powers, identify beneficiaries and provide instructions for complicated family or financial circumstances.

Your executor may still have work to do, but they will not be starting without a plan.

Estate planning is an act of care

Most people do not make a Will because they enjoy thinking about death.

They make one because they care about the people who will be affected.

A good estate plan can:

• reduce uncertainty;
• make your wishes easier to understand;
• protect children and vulnerable beneficiaries;
• appoint people you trust;
• reduce the likelihood of family conflict;
• make estate administration more straightforward; and
• provide reassurance that important decisions have been considered.

You may not be present when your Will is used, but the people you care about will be.

That is why it matters.

You do not need to have every answer before seeing a lawyer

Many people delay estate planning because they think they need to arrive with every decision made and every document perfectly organised.

You do not.

An estate planning appointment is an opportunity to discuss your family, assets, concerns and priorities. Your lawyer can explain the available options, identify matters you may not have considered and help you make informed decisions.

At Hemmings Legal, we aim to make estate planning clear, practical and supportive, even when the topics are difficult.

View our estate planning services and fixed fees or book an estate planning appointment.

This article contains general information for Victorian readers and is not a substitute for legal advice tailored to your circumstances.