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Wills and Probate

WILLS, PROBATES, TFM & POWERS OF ATTORNEY

Wills and Will disputes
Powers of Attorney, Enduring and Medical Powers of Attorney
Application for a grant of Probate of a Will / Letters of Administration for intestacy
Role of Executor and Administrator
Preparing court application documents
Collection of assets of the Estate
Transfer of real estate
Taxation issues
Statement of distribution
TFM, Will disputes, spousal maintenance and
Re-distribution of assets

A WILL

Why it is essential that every adult should make a Will?

A Will protects what you have worked hard to build up. It aims to prevent a family from being torn apart by bickering over what you leave behind.

The following items are some of the matters which should be considered:

In a Will, you are able to specify which proportion of your property will be left to your spouse, children, parents, or others.

    • For those who are married, their spouse will not necessarily inherit all their estate if they do not have a Will.
    • For those who are not married, a Will can overcome the complexities in the law by clearly stating who gets what.

The Will should empower the Executor to distribute your real and personal property according to your Will. This would reduce family tensions at this very sensitive time.

A Will defines exactly who is to share in the distribution of your estate and the likelihood that any long-lost relatives or other “outsiders” could lay a claim to the estate will be eliminated.

A provision can be made in a Will for a donation to a charitable or other welfare organization if so desired.

A Will may also be used in tax planning to delay the imposition of capital gains tax, to transfer property without paying stamp duty and to create family trusts.

For those with children, it is especially important to provide for their source of income and support and to appoint a legal guardian.

The Will can always be updated when circumstances change and a new Will can be made at any time.

A Will can be confidential. It is an inactive legal document and until death it has no force or effect.

When instructing Antippa Lawyers to draw your Will, you should consider, very carefully, any possible claims to your estate by close or distant family members, dependants, others to whom you provide care, even neighbours.

This list is not exhaustive: it represents only some of the factors for consideration when drawing a Will.

An alternative to a Solicitor drawing a Will is purchasing a Will Kit. Consider all aspects of this method, prior to deciding to complete your own Will.  A Will done right will avoid potential issues with your estate. For a little extra than a Will Kit, you will have peace of mind that it was done right.

POWERS OF ATTORNEY

Do I need Powers of Attorney?

A power of attorney is a legal document that lets you appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. This person is called an attorney.

You can limit the power to cover only specific matters, and you can choose when the powers start.

Your attorney cannot make medical treatment decisions for you unless they also have Enduring and medical powers of attorney. The power endures – or continues – if and when you are unable to make decisions for yourself.

If you don’t appoint anyone, and are unable to make a decision when it needs to be made, the Victorian Civil and Administrative Tribunal (VCAT) will appoint a government organisation to make the decision for you.

Probate is the process of finalizing the deceased assets and financial debts in order to distribute them to the beneficiaries as per the Will, or where there is no Will, the court will grant letters of administration to the person who applies to step in as Executor.
​The Executor needs to sell the assets and pay the deceased person’s debts, and transfer the remaining assets to the people who are entitled to them, or the beneficiaries as per the Will. Where the Executor has to pay from his own money, the funds will be returned to him prior to distributing to the beneficiaries.

Where there is a spouse, they generally receive 100% of the estate (subject to the Will). This is a much simpler process and does not take long to transfer the assets into the spouses name.

Where there is no spouse, process may take many months and is a lot of work for an Executor, especially if there are multiple assets. They need to pay the debts, prepare the assets for sale and sell the assets, comply with any tax obligations and then finally distribute the assets.

Disputes during probate

​In many cases, there are disagreements that arise during probate. Although many WIlls are written to cover all circumstances, a court may still find an dispute a beneficiary puts forward as valid. This will then move the Probate into a TFM claim. This needs to be resolved prior to the distribution of an Estate.


When a families provision in the Will is considered inadequate, they can make a Testators Family Maintenance claims or Part IV claim. This is made to the court as a result of a disputed Probate with respect to the provisions made under the Will where a party feels that the assets are unfairly distributed. 

​The applicant must show that:

  1. The deceased had a moral obligation to make adequate provision for the applicant in the Will, and
  2. The Will was inadequate having no regard for the applicants financial needs and resources.

There are many factors that are taken into account by the court when making their decision, including intent of the Will, the party making the claim and if there is any evidence of the reasons for the distribution, to name a few.

We will assess your position and ascertain your likely success, in certain circumstances, obtaining specialist barristers opinion to avoid unwarranted costs.