Understanding Wills in Victoria
Victoria has its own distinct approach to wills and estate planning under the Wills Act 1997 (Vic). This guide provides general information to help Victorian residents understand what might be involved in creating a will, from basic considerations to complex estate planning aspects.
General Considerations for Making a Will in Victoria
Age and Capacity Considerations
Victoria has specific considerations around will-making eligibility:
Minimum Age: Generally, you might be able to make a will if you’re at least 18 years old.
Testamentary Capacity: Understanding what making a will involves may include:
- What making a will means
- The extent and nature of your property
- The people who might have moral claims on your estate
- How your decisions might affect these relationships
General Requirements Under Victorian Approach
The Wills Act 1997 (Vic) outlines various formalities that may need to be observed:
Written Format: Your will generally needs to be written, whether handwritten, typed, or printed.
Signature Considerations: You typically need to sign your will or have someone sign it in your presence if you cannot sign yourself.
Witness Considerations: Two witnesses may need to:
- Watch you sign your will
- Sign the will themselves in your presence
- Be at least 18 years old
- Not benefit from the will or be married to someone who benefits
Victoria-Specific Will Considerations
How Marriage Might Affect Victorian Wills
Marriage can significantly affect existing wills in Victoria:
Potential Revocation: Marriage may revoke any will made before the marriage, unless the will was made in contemplation of that specific marriage.
Contemplation Exception: If your will states it was made “in contemplation of marriage” to a specific person, it may remain valid after marriage to that person.
De Facto Relationships: Unlike marriage, entering a de facto relationship doesn’t typically revoke existing wills in Victoria.
Divorce and Relationship Breakdown
Victorian approach to how divorce might affect wills:
Former Spouse Provisions: After divorce, any gifts to your former spouse may be treated as if they died before you, unless your will indicates otherwise.
Executor Appointments: Appointments of former spouses as executors may be revoked by divorce unless your will specifies they should continue.
Informal Wills in Victoria
Victoria may recognize informal wills under certain circumstances through the Wills Act 1997:
Court Authority: The Supreme Court of Victoria might validate documents that don’t meet formal requirements if satisfied they represent genuine testamentary intentions.
Assessment Factors: Courts might consider:
- Circumstances of the document’s creation
- Your understanding of will-making
- Consistency with your expressed intentions
Typical Elements People Include in Victorian Wills
Executor Selection
Many people choose someone reliable to manage their estate:
Primary Duties: Executors typically handle probate applications, asset collection, debt payment, and distribution to beneficiaries.
Professional Executors: Some people consider appointing professional trustees for complex estates or when family conflicts are likely.
Asset Distribution
People often specify how their assets should be distributed:
Specific Bequests: Particular items like property, vehicles, or personal effects
Pecuniary Legacies: Fixed dollar amounts
Residual Estate: Everything remaining after specific gifts and expenses
Guardian Appointments
For parents of minor children, considerations might include:
Personal Care: Naming guardians for children’s day-to-day care
Financial Management: Designating trustees for children’s inheritances
Education Preferences: Including guidance about schooling and upbringing
Victorian Probate Process
When Probate Might Be Required
Probate may typically be required in Victoria when:
- Real estate is held in the deceased’s sole name
- Financial institutions require it
- The estate exceeds certain value thresholds
Supreme Court of Victoria
Applications are generally made through the Supreme Court:
Documents That May Be Required:
- Original will and codicils
- Death certificate
- Inventory of assets and liabilities
- Probate application and supporting affidavits
Timeline: Standard applications usually take 6-10 weeks, with complex matters potentially taking longer.
Common Considerations in Victorian Wills
Witnessing Aspects
Many Victorian wills face challenges due to witnessing issues:
Beneficiary Witnesses: Witnesses who benefit from the will may lose their gifts
Presence Requirements: All parties typically need to be physically present during signing
Clear Language
Unclear terms can create potential disputes:
Precise Descriptions: Using specific names and descriptions
Consistent Terminology: Using the same terms throughout your will
Keeping Information Current
Maintaining current information can help avoid problems:
Address Changes: Keeping beneficiary contact information current
Asset Changes: Updating your will when you acquire or dispose of significant assets
Family Provision Claims in Victoria
Part IV Claims
Victoria’s Administration and Probate Act 1958 allows certain people to make claims against estates:
Eligible Claimants: May include spouses, children, former spouses, stepchildren, and dependents.
Court Considerations: Factors might include financial needs, relationship quality, estate size, and competing claims.
Considerations for Minimizing Claims Risk
While claims can’t be eliminated entirely, some people consider:
Fair Provision: Considering family members’ reasonable expectations
Documentation: Keeping records explaining decisions
Professional Guidance: Seeking advice for complex family situations
Will Storage in Victoria
Storage Options
Legal Practitioners: Many Victorian solicitors offer secure will storage
State Trustees Victoria: Provides will custody services
Personal Storage: Ensuring your executor can access your will easily
Bank Facilities: Some banks offer safe custody services
Accessibility Planning
Ensuring your executor can locate and access your will:
- Providing clear location information
- Considering informing trusted family members
- Keeping copies in multiple secure locations
When Professional Assistance Might Be Helpful
Complex Situations
People often consider professional assistance for:
- Business succession planning
- International assets or beneficiaries
- Blended family dynamics
- Tax considerations
- Charitable bequests
Understanding Compliance
Victorian solicitors may help with:
- Understanding Wills Act requirements
- Witnessing procedures
- Clear, legally sound language
- Protection against potential challenges
Typical Costs of Will-Making in Victoria
Professional Fees
General cost ranges in Victoria:
- Simple wills: $300-$600
- Complex wills: $800-$2,500+
- Additional services: Powers of attorney, estate planning advice
DIY Will Considerations
Self-prepared wills may carry various considerations:
- Technical validity questions
- Potential for ambiguous provisions
- Limited guidance for complex situations
Victorian Estate Planning Beyond Wills
Complementary Documents
Enduring Power of Attorney: Appointing someone to make financial decisions if you become incapacitated
Advance Care Directive: Recording your preferences for medical treatment
Appointment of Medical Treatment Decision Maker: Designating someone to make medical decisions
Superannuation and Insurance
Binding Death Nominations: Ensuring superannuation goes to intended recipients
Life Insurance: Reviewing beneficiary nominations regularly
Trust Structures: Considering family trusts for asset protection and tax benefits
Digital Assets in Victorian Wills
Modern Considerations
Victorian wills might address:
- Social media accounts
- Digital photographs and files
- Cryptocurrency holdings
- Online business assets
- Digital subscription services
Access Planning
Providing instructions for:
- Password management
- Account closure procedures
- Digital asset transfer
- Privacy considerations
Conclusion
Understanding the general considerations around creating a will in Victoria can help you become more informed about what might be involved in the process. Victoria’s approach to wills includes various provisions around witnessing, marriage effects, and informal documents that may be worth understanding.
Regular reviews and professional guidance can help navigate complex situations and keep your will current with changing laws and circumstances. While this guide provides general information about Victorian will considerations, individual situations vary significantly.
Disclaimer: This information is general in nature only. It does not constitute legal or financial advice. This information does not take into account your specific circumstances, financial situation, or needs. The information provided here is not a substitute for professional assistance. Victorian will laws can be complex and may change over time. Before making decisions about your will or estate planning, you may wish to seek information from relevant Victorian authorities or consult with qualified professionals who can provide guidance based on your individual situation.