- Deceased Estate and Trust Administration
- Estate Planning
- Family Provision Act
- Making a Will
- Other Estate Litigation
- Powers of Attorney & Enduring Guardianship
Our specialist Wills & Estates lawyers have the experience and compassion needed to guide and assist you through this process and to ensure that the best possible outcomes are achieved with the least amount of distress for all parties involved.
In many instances the administration of an estate will not involve a dispute and an Uncontested Application for Probate and Letters of Administration can be made.
Obtaining “Probate” simply means proving that the Will that is relied upon was the last Will prepared by the deceased.
A grant of Probate may not always be needed particularly for more modest estates with limited asset pools. However, if the deceased owned real estate or had other assets of value then it will ordinarily be necessary to obtain Probate before administering the estate and distributing the deceased’s assets.
In addition to obtaining a grant of probate or an authority to administer and distribute the estate on behalf of the Executor pursuant to the provisions of a valid Will, we are able to assist with the following:
• Family Agreements to alter the distribution of assets – When the family and beneficiaries agree to change the distribution of assets from what is set out in a Will a Family Agreement may be reached. This can also apply where the deceased died without a Will and the rules of intestacy would ordinarily apply but the family and beneficiaries have decided on an alternate distribution of assets;
• Duties and responsibilities involved in administering estates and testamentary trusts including charitable trusts;
• Identification, location and collection of any of the deceased’s assets;
• Consider any potential tax liabilities for the estate;
• Review any debts owed by the deceased and advise on the correct legal order for payment of those debts and the distribution of any assets;
• Preparation of estate accounts and a distribution of assets report to be given to the beneficiaries; and
• Advise in relation to any claims for commission for work performed by an Executor in administering the estate.
Regrettably, not all deceased estates are able to be administered without a dispute between nominated beneficiaries or, as is often the case, would be beneficiaries.
• Who should have the authority to administer the estate;
• Whether any document or recording could constitute a valid Will;
• In the case of competing documents which of a number of documents and/or recordings constitutes the deceased’s last valid Will;
• The likely costs involved if the dispute becomes litigated;
• Potential outcomes if a dispute becomes litigated; and
• Alternative methods of resolution of a dispute including mediation which may enable a contested application to be resolved.
Trusts created by a Will are known as ‘testamentary trusts’. Usually testamentary trusts are described as being ‘discretionary’ meaning the Executor of the Will has complete discretion to decide who will benefit from the trust and the extent of any benefit.
In order for a testamentary trust to be effective it is essential that is properly set up in the first place. We recommend that you speak with one of our specialist lawyers to obtain advice on how best to set up a testamentary trust and in relation to all other estate administration issues. This is an area where we have considerable experience and expertise and we look forward to assisting you.
While many people are unlikely to nominate estate planning as being on their “favourite things to do” list, it really is a task that should be on all our “must do” lists.
The preparation of a carefully thought out and well drafted Will is a central part of estate planning and part of the service our experience lawyers are able to offer our clients.
• Who would you like to manage your affairs and make decisions about your care in the event that you no longer have capacity to make important and everyday decisions?
• Who would you like your belongings (often referred to as ‘assets’) to go to after you die;
• Do you have young children? Consider who would be a suitable guardian to appoint if you were to die before the children were old enough to look after themselves? Do you need a separate trustee from any guardian to manage any assets left to the children until they become adults?
• Do you have children from a previous relationship? If you do consider what provisions will be made for those children. Consider also provisions to be made for a de facto or same sex partner.
• Are there any individuals you may wish to exclude as beneficiaries? Consider whether excluding someone may lead to a dispute over the estate.
• You may have clear wishes for your funeral. Although you obviously cannot be certain they will be followed after your death there is a much better chance things will be done how you want if you leave clear guidance on this issue.
• You may wish to make your position on organ donation clear.
An Executor’s responsibilities range from arranging your funeral through to collecting any debts owed to you in your lifetime,
If the will is disputed then the Executor will be the person responsible for dealing with any dispute including giving instructions to legal representatives in the event of litigation being commenced.
Important matters to consider when choosing an Executor include:
• Who you would like to appoint to manage your estate?
• If you have someone in mind consider whether they are willing to accept this role?
• Is the person you are thinking of suitable for the role and will they have the time needed to carry out the duties involved?
• Is the person you are thinking of likely to outlive you?
• Consider appointing a second alternate Executor as a backup in case your first choice is unable to act in the role. Alternatively, consider whether having joint Executors (two people) to fulfil the role may be a more suitable option.
• Will the person have the confidence and experience needed to do deal with your assets in the way you would like? This question is especially important if you foreshadow a potential dispute over your estate. The Executor needs to be able to act impartially.
• If you do not know anyone suitable consider whether you appoint someone like your solicitor or a trustee company to act in the role.
Proactively planning for how you would like your assets to be distributed after your death can save many hours of heartache for friends and family.
Estate planning can also aid in ensuring that the assets you have spent a lifetime accumulating are not eaten up by costly legal battles after your death which arise simply because no direction has been left as to how you wish your estate to be divided.
We have experienced lawyers on our team who specialise in this important area of law. Please contact us to discuss how we can best assist you in planning for the future.
If you are thinking of making a claim against a Will or you are the Executor of an estate where a claim has been made our specialist lawyers can advise you on how best to proceed with a view to managing and resolving the dispute without unnecessary costs being incurred and with the minimum amount of disruption and stress for all parties.
This is an important consideration in any Family Provision Act claim because often the costs of any litigation that arises out of a dispute over the Will are paid out of the asset pool of the estate. When this happens the beneficiaries of a deceased estate may find that the cost of any dispute can all too quickly reduce the available asset pool considerably.
In New South Wales in order to be able to bring a Family Provision Act claim you must come within the prescribed categories of an “eligible person”.
• The spouse of the deceased (as at the time of the deceased’s death);
• An individual living in a de facto relationship with the deceased at the time of their death;
• A former spouse of the deceased;
• An individual who was either wholly or partly dependent on the deceased at the time of their death;
• A grandchild or member of the deceased’s household;
• Someone who lived in a close personal relationship with the deceased at the time of their death. This category could cover two adults who lived together and provided care and domestic support without receiving payment for that support;
Although parents, sibling, step-children and former de-facto spouses are not expressly listed as eligible persons it is possible that they may be eligible to make a claim if they are able to show that they lived in a close personal relationship with the deceased and were dependent on the deceased for support at the time of the deceased’s death.
In order to successfully contest a Will and succeed on a Family Provision Act claim an individual must not only come within the category
Factors that the Court will take into account when determining any claim include a claimant’s financial position and their relationship with the deceased. The Court will also take into account the size of the estate, other persons who are eligible to make a claim on the estate and the deceased’s relationship with any other eligible beneficiaries.
As each estate and the circumstances that give rise to a claim on the estate will be unique it is not possible to apply a simple mathematical formula to how an estate will be divided up in the event of a dispute.
Our team of Wills & Estate lawyers are very experienced in handling these sensitive and at times highly emotive disputes. They are also very skilled at negotiating successful resolutions which can enable all parties to move on with their lives with as little distress as possible.
We appreciate that Family Provision Act claims can be very stressful for all involved and we look forward to working with you to achieve a favourable outcome.
However, making a will involves much more than just writing down a list of your assets and the people you want to leave them to. It is one of the most considerate things you can do for the people that matter most in your life and it is something that needs careful thought and planning in order to ensure that your wishes will be able to be fulfilled.
A common question that we hear is “I don’t own very much do I really need to have a Will?” The short answer to this question is ‘YES’. Regardless of the size of your asset pool it is important to have a valid Will.
Having a Will gives you peace of mind that you have made your wishes clear as to how you want your assets to be divided up and administered.
Regardless of the size of your estate, what you do not want is for costly legal disputes to arise in respect of your assets. Disputes between would be beneficiaries can quickly consume an estate and properly prepared Will is the first step in avoiding this scenario.
It is sensible to review your Will periodically. If your personal circumstances change it is especially important to review your Will to take into account those changes.
While in theory you are able to prepare a Will leaving your estate to whomever you please, even if that is a home for stray cats, in reality it is very important to seek legal advice on this point.
The role of an Executor is a responsible one and while it can be tempting to choose your best friend or eldest child simply because it seems the right thing to do,
The question of who to appoint as executor is an important decision and something we can guide you on when preparing your Will.
It is important to seek legal advice prior to preparing or updating a Will. A validly prepared, properly witnessed and current Will is a good step in the right direction in ensuring that your assets are distributed how you want and to whom you want after your death.
If you are thinking of preparing or updating a Will please contact us and speak with one of our experienced specialist Wills and Estates Lawyers. This is an area of law that we have considerable experience in and we are happy to discuss any questions you may have.
If you are a beneficiary or an Executor tasked with distributing an estate that becomes disputed this can be a very challenging and stressful time. Our experienced and caring lawyers are able to advise and guide you in relation to a broad range of estate litigation and to help you achieve, as far as possible, a timely and satisfactory resolution of any dispute.
The main grounds for disputing the validity of a Will that can result in litigation are:
• Claims of undue influence – Where one party claims that another party (usually a beneficiary) exerted an unreasonable level of influence over the deceased
For example, where the deceased was elderly and infirm and leaves a considerable portion (or all) their assets to a paid carer excluding all family members, the children of the deceased may feel that the carer exerted an undue level of influence which resulted in the Will being drawn in their favour ;
• Allegations of fraud and/or allegations that the Will (or some part of it) is a forgery – Examples of these types of disputed include where a question is raised as to whether the signatures on the Will are in fact real or are forgeries, particularly the deceased’s signature and where a document is alleged not to have been created or authorised by the deceased but by another person or group of persons ; and
• Claims that the deceased lacked the necessary mental capacity (usually described as testamentary capacity) to make the Will at the time it was executed. These types of claims often arise when the deceased was elderly and sick for long periods of time or suffered from dementia or some other form of loss of memory.
In addition to disputes over the validity of a Will, other types of estate litigation include disputed between executors, beneficiaries and even other interested parties (for example the parents of child beneficiaries) over matters such as:
• Whether a Will contains an obvious error or mistake. For example, if the Will refers to “my son John” when in fact the deceased only had a daughter named Jane and no other children;
• Disputes about whether an executor should be allowed to act in that role;
• Disputes between beneficiaries as to how the estate should be administered. These types of disputes often arise when one beneficiary is also the executor of the estate and other beneficiaries have not been appointed as joint executors under the Will and do agree with how the executor is distributing the assets of the estate;
• Where one or more of the beneficiaries would like the executor to be removed and replaced by another party; and
• Where one of the beneficiaries is said to have caused or been unlawfully involved in the deceased’s death. For example, in cases where a parent has left their estate to their children in equal shares but one of those children has been charged with an offence in connection with the parent’s death.
Estate litigation is often highly emotional and tenaciously fought for a number of reasons, not the least of which is that the parties to a dispute often find themselves in a vulnerable and distressed state before the dispute even arises.
Family circumstances and histories are also often very complicated and the disputes that arise in the context of a deceased estate may have been years or even generations in the making. Given the potential ramifications on both a financial and personal level it is important that you engage lawyers that you can trust and who are experienced in working with parties in such fraught circumstances.
If you find yourself or a loved one in this position please contact us to discuss you matter as soon as possible. We are here to help and look forward to working with you to resolve any dispute as efficiently and cost effectively as possible.
A Power of Attorney is a legal document that allows someone to choose another person to make decisions for them in the event that they are unable to make decisions for themself.
The two main types of Powers of Attorney are an Enduring Power of Attorney and a General Power of Attorney.
An Enduring Power of Attorney is useful if you are planning for the future and continues even when a person is unable to make a decision themselves, say as a result of accident or illness.
An Enduring Power of Attorney continues even after you have lost capacity to make a decision and may last up until an individual’s death at which time the Executor appointed under a person’s Will takes responsibility for all decisions associated with the administration of the deceased’s estate.
On the other hand, an Ordinary Power of Attorney does not last indefinitely and is more like a one off power that is issued for a set period of time and a set purpose. For example, if you are buying a home and will be overseas at the time the sale is finalised you may give someone a Ordinary Power of Attorney to finalise the sale on your behalf. In that example, the Ordinary Power of Attorney will end as soon as the sale is finalised.
Appointing an Enduring Guardian is different from giving someone your Power of Attorney.
It is important to remember though that an Enduring Guardian cannot usually make decisions about the handling of your money or assets. In order to grant someone that power you will also need to give them an Enduring Power of Attorney in addition to making them your Enduring Guardian.
It is always sensible to plan ahead not just for expected end of life events but even things as simple as travelling overseas
If you or someone you know or care about is considering appointing an Enduring or Ordinary Power of Attorney or would like to consider appointing an Enduring Guardian, it is important that you fully understand both the effect of the appointment and the responsibilities that come with being appointed. It also important that all necessary forms are completed correctly to ensure the appointment is legally valid.
Our team of specialist lawyers has considerable experience in assisting our clients with these important life decisions and is able to work with you to compassionately and clearly explain your options and prepare all necessary paperwork to ensure that any appointments are well thought out, clear and legally valid.
Please contact us if you have any questions or would like any assistance in this regard.
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