Balance Aged Care - Financial Group Logo

Balance Retirement & Aged Care Specialists

What are the Major Problems in Not Reviewing the Will and How does this affect Probate?

Posted on: October 4th, 2024 by Lachlan Hiam in Aged Care Planning, News, Probate

In helping our clients move into aged care, on occasions we see their wills to ensure that whatever strategy they adopt to pay for their aged care does not conflict with their testamentary intentions. 

However, we frequently come across problems in the will that have not been picked up that may cause a problem after the death of the person in care, which can often require a more costly Probate process or require ‘Letters of Administration’ to be obtained instead of Probate which can take even longer and cost more.

Some of the problems we have seen, include: 

  • The deceased was the executor of their own estate. This is a major problem, as this cannot happen and requires the Supreme court appointing an Administrator.
  • The will has not been reviewed recently and therefore; 
  1. The executor had predeceased the testator (the person whose will is involved).
  2. The names of the executors are wrong (spelling errors, typing errors etc.).
  3. Specific assets left to a beneficiary are no longer in existence (i.e. had been sold years ago). 
  4. The executor and/or beneficiary is the spouse, and that spouse now has dementia and cannot act as executor and there is no provision in the will for a “substitute” executor is “not willing or unable” to act as executor, the will only provision for the executor had “predeceased” the testator. This meant the supreme court had to appoint an administrator to apply for Letters of Administration, once again taking longer for the estate to be wound up and costing the estate more money 
  • Executors not obtaining a tax clearance on the deceased or the estate, only to find that they personally were liable for the tax after the estate had been wound up. If the executor was not a beneficiary, they would have to try to get the money back from the beneficiaries- who were not prepared to give the tax back. 

Wills and estates are extremely important, but most people put them in a drawer & never review it, until an executor must go looking for it (quite often too late to make any changes that need to be made). 

Moving into aged care is a good time to review the will and make any changes that need to be made (before the death of the testator) and even then, it can be too late if the person moving into care has dementia and cannot make any changes.