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  • 08 Wills, Estates and Funerals and Guardianship
  • Wills, Estates and Funerals
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Handbook

Wills, Estates and Funerals

Making a Will

Legislation The four Acts that will most likely be encountered with wills and estates are the Wills Act 2008 (Tas)  the Intestacy Act 2010 (Tas)  the Testator’s Family Maintenance Act 1912 (Tas) (the 'Testator's Act'), and the Administration and Probate Act 1935 (Tas). The Wills Act governs the ...

Types of Wills

Informal Wills Sometimes it will transpire that a will has not been executed in accordance with the requirements of the Wills Act. This could be that the document purported to be the will has not been properly witnessed, for example. In such circumstances, a court can be satisfied beyond reasona...

Changes to Wills

Updating, altering or adding to a Will Prior to the 2008 Wills Act you could not add to a will, and you had to add a codicil – a separate document containing changes, or you would have to execute a wholly new will if you sought to alter it. Section 18 of the Wills Act has changed this. With sect...

Intestacy – Dying without a Will

Intestacy is a way of saying ‘died with no will’. An intestate is a person who died without a will. There are rules that govern intestacy, set out in the Intestacy Act 2010 (Tas). The laws can be complicated, and simple. The complicated part is ‘statutory legacy’, which is the amount determined t...

Dealing with the Estate

Insolvent Estates - Rights of creditors Where a deceased dies insolvent, the estate can be declared bankrupt, just as if the person was still alive. Before any debts can be discharged, the priority of the estate is to pay the funeral, testamentary and administration expenses (Schedule II, Part 1...

Funeral Expenses

There is no death duty at either state or federal level. Funeral expenses are often covered by family, or have been provided for by the deceased with funeral insurance. If no such provisions are made, funeral expenses can be specifically provided for in the will of the deceased, or will come o...

Administrative Concerns

Coronial Delay Coronial delay in release of a body is a situation that may arise. Coroners have legal obligations to carry out their duties properly, and to ensure that they know the cause of death of a deceased. Sometimes there may be delays, as there is more than one coroner and some coroners ...

Inheritance Problems

Adopted Children The Testator’s Family Maintenance Act 1912 (Tas) (the 'Testator's Act') defines ‘child’ to include ‘adopted child’. The Intestacy Act 2010 (Tas) also regards an adopted child as a child of the deceased for the purposes of distribution of an intestate estate. If there are no comp...

Executors and Trustees

Executors Executors are charged with administering the will. It is best to appoint more than one executor. Problems that can arise with executors include: There being no executor appointed. The Supreme Court Probate and Administration division can step in to appoint a person to act as an ex...

Distributing the Property

Distribution of Gifts When gifts are made in a will, the obligation on the executors of the will is to distribute such gifts. However, beneficiaries do not have any right to the property of the deceased up until the actual distribution. Maintenance There can be problems where a beneficiary is ...

Contesting a Will

For Validity Most often, a challenge to the distribution of a deceased’s asset will be where the was no will, and the intestacy distribution is being distributed. However, where there appears to be a valid will, a will can be challenged on several grounds. These grounds are that the testator: ...

Providing for the needs of a Person with a Disability

It is important for everyone to make a will. This particularly applies if a person has an intellectually disabled child who is unable to look after their own property. A will can be made flexible enough to allow for improvements in a person with a disability's ability. Where there is no will, ...

Costs

Solicitors Solicitors fees will vary according to the firm, the size of the estate, and according to the service being sought, such as if you were looking to have a will written up, or have a solicitor act as an executor of the will. Public Trustee   Different fees and charges apply to...

Contacts and Resources

The Tasmanian Law Society provides a database of firms that specialise in areas of law, including Wills, Testator’s Family Maintenance, and Administration of Estates. Simply go to their website and select one of these categories from the ‘Areas of Practice’ drop down menu to find a firm. There...

Page last updated 19/03/2018

Next Section Guardianship and Administration for Adults