Wills & Estates
Many people put off the task of making a Will for as long as possible. For others, making plans for the inevitable is a practical step that can help their families in the future. We can help you prepare a valid Will that provides clarity for your family after you die and helps minimise disputes and claims on your estate when you are gone.
If you have lost a loved one or are the executor of an estate, we can also guide you through the legal process of administering and finalising the estate.
Making a Will
Every adult should have a Will and even if you already have one, there is a chance that it needs to be reviewed and possibly updated.
A Will performs a number of different functions. At a minimum, it appoints somebody to manage your affairs after you die – your executor – and sets out how your property should be distributed to your beneficiaries. A Will can also leave other instructions for your executor to follow, such as a plan for your funeral, or wishes for the care of your pets. If you are a parent, your Will can appoint guardians for any minor children you leave and arrange for their future financial support through a testamentary trust.
If you are married with children, a simple Will may state that your spouse receives the entire estate unless they predecease you, in which case your children inherit in equal shares. In the case of a blended family, however, where one or both partners have children from previous relationships, the preparation of an effective Will can be a little more complex.
Making a Will requires consideration of a range of matters and should be done with the assistance of an experienced lawyer. A DIY will kit will rarely flag the potential pitfalls of ambiguous terms that your family is left to question, or the gift of an asset that you no longer own after you die.
For a Will to be valid, it must meet certain legal requirements. It must be signed and dated, and properly witnessed by at least two people who are not beneficiaries under the Will. A Will should be carefully stored and preserved, as any marks or damage could affect its legibility or lead to questions about its validity. Even a staple mark can bring the validity of a Will into question, as it may suggest that there was a document attached that is missing.
In addition to ensuring the formal requirements are met to make a valid Will, a lawyer will look at your specific circumstances and, as far as possible, ensure that your Will reflects your true testamentary intentions and minimises disputes.
We also provide preliminary Family Provisions advice (claims against the Estate) and advice to the Executors, Administrators about the possibility of former and current entitled parties (including spouses, children and dependents) making a claim under the Succession Act 2006 (NSW) and advise clients making their Wills to draft their Wills & additional Statements under section 100 of the Succession Act 2006 (NSW) to potentially avoid / minimise Family Provision Style Claims.
Dying Without a Will
When someone dies without a valid Will, they are said to die ‘intestate’. In that case, someone (usually a close family member) will usually need to apply to the Supreme Court for letters of administration before dealing with the estate. The administrator will then have the responsibility of distributing the estate assets according to the rules of intestacy. There are specific rules set out in legislation that determine who, from the deceased person’s family, and in what proportion (as relevant), will inherit from the estate.
Help for Executors and Administrators
If you are the executor/administrator of a deceased estate, you may be feeling overwhelmed with your legal responsibilities. While some people undertake all the duties of an executor by themselves, most find that they need the help of a lawyer, particularly if they need to apply for Probate or Letters of Administration.
Applying for Probate/Letters of Administration is the process of asking the Court to confirm the validity of a Will or to confirm the administration of an Estate and authorise the executor/administrator to deal with the estate and carry out the deceased’s wishes, or statutory requirements for administering the Estate. Usually, banks and other organisations will not release large assets for distribution to beneficiaries unless the executor/administrator has obtained Probate or Letters of Administration.
Sometimes it is not necessary to apply for probate, especially if the only significant asset of the estate is a property that is jointly owned with nother person. In that case, the surviving owner takes full ownership of the property, which can be legally transferred by following the process set out by the state’s land registry service.
Whether you are an executor appointed under a Will or administratior for an Intestate, or somebody dealing with the loss of a family member, you will have various responsibilities which typically include:
- making funeral arrangements
- applying for or obtaining the death certificate
- identifying and protecting assets
- applying for a grant of probate or letters of administration
- contacting the deceased’s account providers and government authorities
- claiming funds under superannuation and life policies
- transferring real estate using the appropriate processes
- distributing assets and reporting to beneficiaries
- preparing estate tax returns, if relevant
If the Will is being contested, you may face an uphill battle to defend the matter. An experienced lawyer can help you to decide if you should compromise a claim or defend it.
We can guide you through the process of estate administration, help you fulfil your legal obligations, and deal with any obstacles along the way. If you need assistance, contact [email protected] or call 02 9601 4311 for expert legal advice.