Standard Clauses in my Will

The use of a time frame such as 28 or 30 days in a Will is to bring about certainty for the Executor and for the beneficiaries of the Will.

One of the greater difficulties for dealing with an estate could be if a husband and wife both passed away in an unfortunate accident. It can sometimes be quite difficult to ascertain who passed away first and therefore, who survived in order to receive their spouse’s assets. For this reason, a period of 30 days is usually included to make it clear that only if the partner survives by 30 days do they receive the assets. This is why the rest of the paragraphs in the Will go on to deal with the situation where the partner does not survive by 30 days.

In any event, it is most unusual that an Executor would be looking to transfer a deceased person’s assets within 30 days of the death. This is because it can often take two to three weeks to receive a death certificate and even longer to obtain a Grant of Probate.

There are some legal rules that relate to inheritances. One such rule is that a person cannot benefit from a Will where they have brought about the deceased’s death. This is clearly designed to stop people benefiting from a crime.

In Wills prepared by Lynn & Brown Lawyers, we include a fairly detailed clause which deals with the powers of Executors. Because the Executor you have chosen is someone whom you trust to act properly in administering and dealing with the estate, we encourage you to give them powers to enable them to distribute your estate.

1. The Will confirms the Executors have all the powers which Trustees have under the Trustees Act (WA). The Trustees Act sets out various powers which Trustees have in relation to selling, mortgaging or leasing assets. The Executor is given power to make decisions about when assets should be kept or sold and how they should be sold or distributed to beneficiaries.
2. The Trustee can hold onto assets even though in doing so the end result may be that there are capital gains or income tax complications. The Trustee can hold onto assets such as motor vehicles, which generally require maintenance and insurance and depreciate in value, if there is a good reason for doing so. By way of example, the Trustee can retain a lease of premises. A lease is usually referred to as a wasting or reversionary asset, because as time passes the lease expires and is lost. The Executor can also sell assets by auction and can distribute assets “in specie”, which means “as they are”. This means that furniture and other personal belongings do not have to be sold, but can be divided up amongst the beneficiaries.
3. The Executor is given power to make decisions about whether monies that come into the Executor’s hands are income or capital. This can be useful to an Executor where there are significant assets and in taking advice from an accountant, they can make decisions about what various monies represent.
4. The Executor is given power to decide what money should be paid to beneficiaries who may not yet be entitled to their share of the estate. This is particularly relevant where there are young children who are to receive part of the assets. The Executor can make decisions about how those monies, which will eventually be paid to the young beneficiaries, should be used until the age that you have set in your Will. It allows monies to be used for education, maintenance and other relevant expenses. Note that the power is discretionary, and that the Executor may release money for the benefit of the infant beneficiaries. This is not an obligation to do so but allows the Executor some flexibility in dealing with the assets.