2001
Hendersons Legal established in Melbourne
30+ years
of experience for our principal, David Henderson
Across Victoria
by phone, email and e-signing
What do you need help with?
Pick the situation closest to yours and we’ll show the topics that usually come up.
Planning ahead
Making or updating a will
A will that sets out your wishes plainly, whether your situation is simple or involves trusts, a blended family or a business.
Powers of attorney and medical decisions
Choosing who can make financial, personal and medical decisions for you if you cannot.
An enduring power of attorney lets you choose someone to make personal or financial decisions for you if you lose capacity. Medical treatment decisions are separate. An attorney cannot make them unless you also name that person as your medical treatment decision maker.
If you choose no one and later cannot decide for yourself, VCAT can appoint a guardian or administrator, who may be a family member, the Public Advocate or State Trustees. For medical treatment, the law also sets a default order of people to decide for you, which may not match who you would pick.
We prepare these documents alongside your will. See our will drafting and powers of attorney page, or tell us what you need.
Sources: Office of the Public Advocate (powers of attorney), Office of the Public Advocate (medical treatment decision makers)
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Super and your will
Your super may not pass under your will. A death benefit nomination can decide who is paid.
Super does not automatically form part of your estate, so your will may not control it. Your fund decides who is paid, guided by your nomination. A valid binding nomination generally requires the fund to follow your instructions. A non-binding one only guides the trustee.
Lapsing binding nominations typically expire after three years unless you renew them, and some funds offer non-lapsing ones. You can also nominate your legal personal representative, which brings the super into your estate. If you have a self-managed super fund, the fund’s trust deed must be followed, even if it differs from your will.
Super law decides who can be paid a death benefit, and tax law decides how it is taxed, so involve your accountant or financial adviser too. Read our guide to death benefit nominations, or ask us to check your nomination against your will.
Sources: Moneysmart (ASIC), ATO: death of an SMSF member, ATO: superannuation death benefits
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Trusts in your will
Leaving assets on trust, for example for young children, a new partner or a family business.
A testamentary trust is a trust that your will creates and that starts when you die. Instead of leaving assets outright, you leave them to a trustee to hold for the beneficiaries. People use them for young children, for a partner and children from an earlier relationship, or to keep a family business together.
Tax rules can matter. The ATO treats income a testamentary trust earns from estate property as excepted income for a child under 18, which is taxed at adult rates rather than the higher rates that apply to a minor’s other income. Your accountant can advise on tax. We draft the will and the trust terms.
We prepare wills that include trusts, including discretionary trusts, and advise on how they work after a death. Tell us about your family and your assets.
Source: ATO: your income if you are under 18
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Marriage, separation and divorce
Marriage and divorce can change what your will does. Review it when your family changes.
In Victoria, a later marriage generally revokes an earlier will, unless the will was made in contemplation of that marriage (Wills Act 1997 (Vic), s 13). A divorce generally revokes gifts to a former spouse and their role as executor, unless the will shows you wanted them to stand (s 14). Exceptions apply to both.
Other changes are also good reasons to check your will still does what you want, such as separation, a new relationship, the birth of a child, or buying or selling a property.
If your circumstances have changed, get in touch and we will review your will with you.
Source: Wills Act 1997 (Vic)
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Start with our will checklist
What to gather and decide before we prepare your will, so you can get started online.
After someone has died
Probate and letters of administration
Applications to the Supreme Court of Victoria for a grant, and help with the steps that follow.
Duties of an executor
What an executor or administrator has to do, from paying debts to distributing the estate.
An executor or administrator must make sure the estate’s debts, including funeral expenses, are paid. They then distribute what is left under the will or, if there is no will, under the intestacy rules. If the Court or the Registrar asks, they must file a verified account of how the estate has been administered.
You do not always need a grant of probate. It depends on what was held in the deceased person’s sole name and what each bank or other asset holder requires. The Court says a grant is always needed where the deceased owned real estate alone or as a tenant in common. Applications are made online through the Court’s RedCrest-Probate system.
We advise executors and administrators, prepare the application and help with collecting assets, paying debts and distributing the estate. Tell us where you are up to.
Sources: Supreme Court of Victoria: probate FAQs, grants of probate and administration
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
When there is no will
If someone dies without a valid will, set rules decide who shares the estate.
Where there is no valid will, Victorian legislation decides who is entitled to share in the estate. The rules apply regardless of what the person may have wanted, and they follow a hierarchy of family relationships, so the result can surprise people.
The closest next of kin who is entitled to share in the estate usually applies to the Supreme Court for letters of administration. The Court has an online questionnaire that gives general information about who may share, based on the family relationships at the date of death.
If you are dealing with an estate where there is no will, tell us what you know and we will explain the next steps.
Sources: Supreme Court of Victoria: who is entitled to share, letters of administration (no will)
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Property and joint ownership
How a home or other property passes after a death depends on how it was owned.
Joint tenants have a right of survivorship. When one owner dies, the whole property goes to the surviving owner or owners rather than into the deceased person’s estate. Property held in one person’s name, or as a tenant in common, is different, and the Court says a grant is always needed for it.
The register of title is then updated, either by a survivorship application where a joint owner survives, or by a transmission application once a grant has been made. That step is usually needed before the property can be sold or transferred.
Our conveyancing lawyers can look after the legal work on estate property. See our property transfers page, or tell us what you need.
Sources: Land Use Victoria, land registration bulletin 221, Supreme Court of Victoria
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Disputes and claims
Estate disputes
Claims by people left out of a will, challenges to a will, and disputes with executors.
Left out of a will?
Some people can ask the Supreme Court for more from an estate. Strict time limits apply.
A family provision claim, also called a testator’s family maintenance claim, asks the Supreme Court of Victoria for further provision out of an estate under Part IV of the Administration and Probate Act 1958 (Vic).
Claimants are generally close family members or people who depended on the person who died. Whether you are eligible, and what the Court might award, depends on your circumstances.
Time limits are strict. A claim generally has to be made within six months of the grant of probate or letters of administration, so get advice as early as you can. Read our guides on who can contest a will and challenging wills in Victoria. We act for people who think they have been left out.
Sources: Supreme Court of Victoria: TFM List, Practice Note SC CL 7, Victoria Legal Aid: challenging a will
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Challenging a will
Doubts about capacity, pressure or how a will was signed can lead to a challenge.
People question a will for different reasons. Common ones are doubt about whether the person had capacity, a concern that they were pressured, and a worry that the will was not signed and witnessed correctly. Under the Wills Act 1997 (Vic), s 7, a will generally must be in writing and signed, and made or acknowledged in front of at least two witnesses who are present at the same time and who then sign it.
Even a document that was not signed correctly can sometimes be accepted. The Supreme Court may admit it to probate if it is satisfied the person intended it to be their will (s 9).
If you are worried about a will, or someone has challenged a will you rely on, tell us what has happened.
Source: Wills Act 1997 (Vic)
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Defending a claim as executor
Executors who face a claim need to protect the estate and treat beneficiaries fairly.
If someone makes a claim against an estate, the executor is usually the person who has to respond. Get advice early, before you make any distribution, so that you understand your position and your duties.
We act for executors who face a claim. Each person in a dispute needs their own lawyer, so we cannot act for both an executor and a claimant in the same estate.
Tell us about the claim and where the estate is up to.
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Disputes with an executor
Concerns that an executor is not doing the job, or beneficiaries who want answers.
Executors and administrators must file a verified account of the administration if the Court or Registrar asks. A person with a sufficient interest in the estate can ask the Registrar to require one, usually after reasonable attempts to get the information from the executor first.
Often a beneficiary just wants to know how the estate is going. We can help you ask the right questions, raise your concerns with the executor and, if needed, take the matter to the Court.
Tell us what is happening and what you have tried so far.
Source: Supreme Court of Victoria: probate FAQs
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Why clients choose our wills and estate lawyers in Melbourne
Plain-English advice
We explain wills, trusts and estate rules in everyday language, with the family side of it in mind.
Every stage of an estate
We help with planning, administering an estate and, where we can act, disputes.
Fees confirmed upfront
We confirm the scope and our fees in writing before we start.
Easy to work with
We work by phone, email and e-signing, and alongside your accountant and financial adviser.
How it works
Send an enquiry
Use our online enquiry form or call us, and tell us briefly whether you want to plan ahead, deal with an estate or resolve a dispute.
We clarify your instructions
We confirm what you need and briefly review your documents, such as an existing will.
You receive a costs agreement
We prepare a costs agreement and disclosure statement setting out the scope and our fees.
We start work
Once you accept, we get going and keep you updated.
Selling or transferring a property in an estate?
Our conveyancing lawyers handle survivorship, transmission and the sale of estate property, so the legal work on the property and the estate fit together. See our property transfers page, send us an online enquiry or call (03) 9629 2211.
Related practice areas
Transfers between family members and out of estates, including survivorship and transmission.
Buying and selling property, contract review and settlement.
Court representation and dispute resolution when a matter cannot be settled.
Company and family business matters, including succession planning.
Farm transfers, leases and contracts for farmers and rural landowners.
Frequently asked questions
Do I need a lawyer to write a will?
No, you are not required to use one. A will can be valid whoever prepared it, as long as it is in writing and signed and witnessed as the Wills Act 1997 (Vic) requires. But unclear wording or a mistake in the signing can lead to a dispute or an invalid will, and a lawyer can help you get both right. See our guide to will kits versus a lawyer, or our will drafting page.
What is the difference between probate and letters of administration?
Probate is the Supreme Court of Victoria’s grant certifying that a will is the last valid will of the person who died, and it goes to the executor named in the will. Letters of administration are granted when there is no will, or the will is not valid, usually to the closest next of kin. If there is a valid will but the executor cannot or will not apply, the Court can grant letters of administration with the will annexed. We handle all of these. Read more on our probate and letters of administration page.
Can I contest a will if I have been left out?
Possibly. Some people, generally close family members or people who depended on the person who died, can ask the Supreme Court for further provision out of the estate under Part IV of the Administration and Probate Act 1958 (Vic). Claims generally have to be made within six months of the grant of probate or letters of administration, so it is worth getting advice early. See our estate disputes page and our guide to who can contest a will.
Do I always need probate when someone dies?
No. The Court says there is no automatic requirement to apply for probate. Whether you need a grant depends on what was held in the deceased person’s sole name and what each bank or other asset holder requires. A grant is always needed where the deceased owned real estate alone or as a tenant in common. Jointly held assets often pass to the surviving owner without one.
Does my will cover my super?
Not automatically. Super does not automatically form part of your estate. Your fund pays it, guided by your death benefit nomination, unless you nominate your legal personal representative so it is paid into your estate. See our guide to death benefit nominations.
What happens if someone dies without a will?
Victorian legislation sets out who is entitled to share in the estate, and the rules apply regardless of what the person may have wanted. The closest next of kin who is entitled to share usually applies to the Supreme Court for letters of administration. The Court has an online questionnaire that gives general information about who may share.
How much does it cost?
It depends on what you need. A will and powers of attorney are generally less work than a probate application or a contested estate. We do not publish a price list. Before we start, we confirm the scope and our fees in writing, in a costs agreement and disclosure statement. Call us on (03) 9629 2211 or send an online enquiry and we will explain what is involved.
This is general information, not legal advice. Every estate and every family is different, so get in touch about yours.
Tell us about your will or estate
Send an online enquiry or call (03) 9629 2211, and our Melbourne wills and estate lawyers will come back to you about next steps.