Understanding the Basics of Wills and Estates

A comprehensive guide to understanding wills, estates, and the probate process in Victoria. Protect your assets and provide certainty for your loved ones.

Disclaimer: This article provides general information based on Australian law and is not legal advice. Laws and policies change — contact Ebra Partners for advice specific to your situation.

Planning for your future is a scary but crucial part of life, ensuring your assets and loved ones are protected after passing. In Victoria, Australia, gaining a full comprehensive understanding of the fundamentals of wills and estates is essential for effective estate planning.

At Ebra Partners, proactive planning is the cornerstone of safeguarding your legacy. Whether you're drafting your first will or managing a complex estate, understanding the fundamentals of 'what is a will' and 'what is the estate in a will' is critical to ensuring your wishes are honoured.

What Is a Will?

A will is a legal document outlining how a person's assets and affairs will be managed and distributed after their death. In Victoria, the creation and validity of wills are governed by the Wills Act 1997. Key requirements include:

• The testator (will-maker) must be at least 18 years old, though minors can create a will if married or authorised by a court order.
• Testamentary capacity: the person must understand the nature of the document, the extent of their assets, and the claims of potential beneficiaries.
• The will must be in writing, signed by the testator, and witnessed by two independent adults.

What Is the Estate in a Will?

The term "estate" refers to the totality of a person's assets and liabilities at the time of their death — including real estate, personal property, bank accounts, investments, and any other assets. Certain assets, such as jointly owned properties or superannuation funds with nominated beneficiaries, may not form part of the estate and are transferred directly to the co-owner or nominated individual.

The Importance of Having a Will

Creating a valid will is the only way to guarantee your assets are disposed of exactly as you wish. Without one, the distribution of your estate is determined by Victorian intestacy laws — which may result in outcomes that do not align with your personal wishes.

Common Pitfalls to Avoid

• Outdated Wills: Life changes — marriage, divorce, new children — require updates. Getting married will generally revoke any existing will unless it was specifically made in contemplation of that marriage.
• Informal Wills: While the Wills Act 1997 allows courts to validate informal documents, DIY wills risk errors in execution or ambiguous language, leading to disputes.
• Overlooking Family Provision Claims: Under Part IV of the Administration and Probate Act 1958, eligible individuals can contest a will if they feel inadequately provided for. Proactive planning minimises such risks.

The Role of the Executor

The executor plays a pivotal role in the administration of the estate. Their duties include applying for a grant of probate, managing and distributing assets, paying debts and taxes, and ensuring that the deceased's wishes are fulfilled. Given the complexity and responsibility associated with this role, it's advisable to select a trustworthy and capable executor.

Recent Developments in Victorian Probate Fees

The Victorian government has announced significant probate fee increases, with new rates up to 650% higher from 18 November 2024. Fees will shift from a fixed rate to a tiered system, with estates valued between $250,000 and $500,000 facing a rise from $68.60 to $514.40 — peaking at $16,803.60 for estates over $7 million. These changes underscore the importance of effective estate planning.

How Ebra Partners Can Help

Whether you're a business owner, expatriate, or part of a blended family, our estate lawyers create bespoke plans addressing Victorian laws and global complexities. Beyond drafting wills, we assist with testamentary trusts, tax-efficient distributions, and contested estates.

A well-structured will is the gift of security for your loved ones. Ready to start? Contact our will estate lawyers today — because your legacy deserves nothing less than excellence.

Need personalised advice? Contact Ebra Partners on 1800 845 143 or visit us at 1059 Mt Alexander Road, Essendon VIC 3040 for a free initial consultation.