The Top 5 Questions We’ve Been Asked This Year as Wills and Estate Planning Lawyers in Victoria

Each year, we notice clear patterns in the questions our clients ask, often centred around protecting loved ones, planning for the future and navigating difficult circumstances with confidence.

Here are the top five wills and estate planning questions we’ve been asked so far this year, along with practical, Victorian specific insights to help you better understand your options.

1. Do I really need a Will, even if I don’t have many assets?

Yes. A Will is not just about distributing wealth — it’s about clarity, control, and ensuring your wishes are legally recognised.

Even if you feel your assets are modest, a valid Will allows you to decide: 

• who receives your estate 

• who will administer your estate after you pass away 

• how your personal items, digital assets and sentimental belongings are handled.

Without a Will, your estate is distributed under Victoria’s intestacy laws, which follow a strict formula. This may not reflect your wishes and can create unnecessary stress or conflict for the people you care about.

2. Who should I appoint as my executor?

Your executor is the person responsible for carrying out your wishes and managing your estate after you pass away. Their responsibilities may include:

• dealing with banks and financial institutions

• paying debts and final expenses

• applying for probate (if required)

• distributing assets to beneficiaries

It’s important to choose someone who is trustworthy, organised, and willing to take on the role. Some people appoint a professional executor particularly where the estate is complex or there is potential for conflict.

3. Can someone challenge my Will?

Yes. In Victoria, certain people may be eligible to challenge your Will if they believe they have not been adequately provided for. These claims are known as family provision claims and are becoming increasingly common.

Eligible people may include:

• spouses and de facto partners

• children (including adult children)

• sometimes stepchildren or others who were financially dependent on you

Thoughtful estate planning, including careful drafting and documenting your intentions, can help reduce the risk of a successful challenge.

4. Can I leave someone out of my Will, and what happens if I do?

You can choose to exclude someone from your Will, but doing so does not necessarily prevent them from making a claim.

In Victoria, certain people (such as partners, children, and dependants) may still be eligible to challenge your estate if they believe they have not been adequately provided for.

If you intend to exclude someone, it is important to:

• document your reasons

• structure your estate planning carefully

• obtain legal advice to ensure your wishes are as robust as possible

This won’t guarantee a challenge won’t occur, but it may strengthen the position of your estate, and it may reduce the likelihood of a successful claim.

5. What is the difference between a Will and an Enduring Power of Attorney?

This is a common area of confusion.

• A Will takes effect after you pass away and deals with the distribution of your estate.

• An Enduring Power of Attorney operates during your lifetime and allows someone you trust to make financial and personal decisions on your behalf if you are unable to do so.

In Victoria, there are two key types of decisionmaking documents that operate during your lifetime:

• Enduring Power of Attorney (Financial and Personal) – Allows someone you trust to make financial and personal decisions if you are unable to make these decisions for yourself. 

• Appointment of Medical Treatment Decision Maker Allows someone to make medical treatment decisions on your behalf if you are unable to make these decisions for yourself.

Having both a Will, Enduring Power of Attorney and Medical Treatment Decision Maker documents in place ensures you are protected both during your lifetime and after you pass away. 

Final Thoughts

Wills and estate planning are ultimately about clarity, protection, and peace of mind for you and for the people you care about. While these topics can feel complex, many concerns begin with simple questions like those above.

Taking proactive steps now can prevent significant difficulties later and ensure your wishes are respected.