Experienced and friendly lawyers providing the over 55s, their families and the disabled with legal services in elder law, business law, wills and estates, estate planning, trusts and retirement villages.
Experienced and friendly lawyers providing the over 55s, their families and the disabled with legal services in elder law, business law, wills and estates, estate planning, trusts and retirement villages. Experienced and friendly lawyers providing the over 55s, their families and the disabled with legal services in elder law, business law, wills and estates, estate planning, trusts and retirement villages.
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Wills and Estates
Wills
Role of the Executor
Probate
Letters of Administration
Administration of Estates
Intellectual Disability

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 Wills

What is a Will?

A Will is a legal document that sets out whom you wish to appoint as Executor/ Executrix to handle your estate after you die and what is to happen to the assets you owned solely as of the date of your death.

Age to make a Will?

18 is the key age, however there are exceptions including anyone under 18 who is married. It may also be possible for a person under 18 who is unmarried to also make a Will provided they obtain Court approval. This is becoming more relevant in recent times as young people are capable of earning large amounts of money in modeling, advertisements and sporting careers.


What are the requirements for a valid Will?

For a Will to be valid it should be:

In writing - this can be either handwritten, typed or printed;
Signed - your signature is required, and any alterations made before you sign must be initialed by you and your two witnesses;
Witnesses - two must be present when you sign your Will and they must sign in your presence.

If a Will is not made in this way it may not be enforceable.


Safe Custody

We offer a free safe custody service to all our clients for safe-keeping of original Wills.

 

7 Reasons Why You Need A Will

1.If you die without a Will this creates an intestacy for your estate.

2. By making a valid Will you can determine the time when a beneficiary inherits.

3. Beneficiaries may not include any step-children
4. Without a Will your family will be faced with more legal hurdles trying to administer your estate.
5. Certain assets may fall into intestacy
6. Disputed Estates
7. Directions

1.If you die without a Will this creates an intestacy for your estate.

If you die without a Will the distribution of your estate is made according to New South Wales statute law. Often the state’s formula for transferring assets will not be the same as you would have chosen if you had done the planning. As you have not appointed any person to act as your Executor the court will appoint an Administrator to collect your assets and discharge your debts. If your spouse did not survive you the court will also appoint a guardian for any minor children standing to inherit.

You should also be aware of the situation where spouses die in an accident the younger is presumed to have outlived the other spouse. Where one spouse survives the other and then dies the assets will pass only to the family of the last spouse to die under NSW intestacy rules.

2. By making a valid Will you can determine the time when a beneficiary inherits.

If you have children who will be beneficiaries you can direct your Trustee in your Will to hold the asset on trust until they reach the age of 21 or 25 years for instance. In contrast, under the laws of intestacy which apply if you don’t have a Will any inheritance would be transferred to the children at 18 years.

3. Beneficiaries may not include any step-children

If you have step-children you will need to include them by name in your Will. Failing this they may be excluded as the definition of the class ‘children’ does not include step-children. They may make a claim on your estate as an eligible person under the Family Provision Act but this would create added difficulties and cost which could have been avoided by simply making a valid Will.

4. Without a Will your family will be faced with more legal hurdles trying to administer your estate.

After you die your appointed Executor will often be required to apply to the Supreme Court for a grant of Probate. Without a Will, an application for Letters of Administration will be required. This procedure is more complicated. It can also create financial burdens because the applicant may be required to provide security to the court to cover the shares of non consenting beneficiaries.

5. Certain assets may fall into intestacy

Even if you believe you have arranged through estate planning methods (such as jointly owned property or a binding nomination of superannuation funds) to pass your assets outside your Will to your chosen beneficiaries, it is wise to put a Will in place to cover any residuary assets.

6. Disputed Estates

The rules of intestacy may deprive one of your beneficiaries from inheriting an adequate share of your estate. You might have provided extra for a disabled child under your Will but because there is no Will a challenge may be made to secure the needed funds. A claim for costs will be made on the estate.

7. Directions

Although not legally binding you can also include directions in your Will requesting particular funerary arrangements for burial or cremation (at common law your Executor determines this but obviously you would have appointed someone who would have regard for your wishes), or

appoint a person as guardian ( or substitute guardian) of your minor children.


We have included a straight forward "Will Preparation Checklist" for your assistance.
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 Role of the Executor

An Executor or Executrix is the person (or trustee company) responsible for settling a deceased person's estate. This includes collecting and distributing assets and discharging liabilities. The Executor must also act without delay to preserve the value of the estate.

What do I do if I'm named as an Executor in someone's Will?

It is then your choice to decide whether you will serve or decline to serve. The Court will appoint someone else to fulfill this role if you decline and there is no alternate Executor named in the Will. If you choose to accept the appointment you should contact us for legal assistance regarding the estate.

As the Executor is acting in accordance with the Will he/she may be called upon to defend the terms of the Will against dissatisfied family members of the deceased or claims by others who felt the deceased was responsible for their welfare.

If necessary the process of obtaining Probate of the WIll should be commenced as soon as possible. This determines the validity of the Will, your position as Executor and enables claims against the estate to be paid and assets distributed to beneficiaries.

At SeniorLaw Sydney we are committed to ensuring you are regularly kept informed of ongoing progress in administering the estate.

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Probate

If you are an Executor or Executrix we can help you master the formalities and documentation required to apply for a grant of Probate. We offer an exceptional Probate Service.

It is important to obtain our experienced legal advice without delay if you are faced with a dispute between beneficiaries over the terms of the Will or a challenge to the validity of the Will.

There is a reasonable understanding of what amounts to a Will in the community but many are not aware of what Probate is, or when it is necessary. The following questions are answered to provide you with a general knowledge before consulting us for more detailed advice.

What is Probate?

Is Probate always necessary?

What can I do if there is a dispute before Probate is even granted?
Is the grant of Probate final or can it be challenged?
How much does it cost to file a Probate application?
How long does Probate take?

 

What is Probate?

A Will can be revoked at any time up until the testator dies. Upon death the Executor takes up a provisional role. Application is made to the Probate Division of the Supreme Court of New South Wales to obtain a grant of official approval of the Will. This formal legal document issued by the Court is known as Probate and confirms:

the Will of the deceased, and also
the Executor’s authority to administer the estate

Even if a subsequent Will is discovered the actions of the Executor cannot be challenged (provided he has acted in good faith at all times).Obtaining a grant of Probate can be of vital importance in protecting the Executor.
This grant of Probate is usually a formality where there is no dispute involved.

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Is Probate always necessary?

No, Probate is not required for very small estates or where property is held jointly. Individual banks etc will have a policy for dealing with the transfer of small accounts without the requirement for a grant of Probate. Joint property will automatically pass by survivorship.

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What can I do if there is a dispute before Probate is even granted?

Action can be taken by way of a Caveat. By lodging a Caveat with the Supreme Court this will halt the Probate process until the Court investigates the issue. This action should be taken immediately if for instance the deceased's Will is thought to be a forgery or the deceased made the Will under duress or undue influence of others.

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Is the grant of Probate final or can it be challenged?

The grant can still be challenged after the Court has issued the grant of Probate in Common Form. A challenge may be made by a person who is 'eligible' under the Family Provision Act 1982. To be successful the applicant must be able to show the deceased did not make adequate provision for them in the Will to ensure their proper maintenance, education or advancement in life. If you believe you may have a claim, contact us as soon as possible as time limits do apply.

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How much does it cost to file a Probate application?

In New South Wales the following court filing fees apply. Fees are an expense paid out of the estate. Fees are calculated on the sworn gross value of the estate:

Probate (does not exceed $50,000) Nil
Probate ($50,000 - $249,999.99) $ 563
Probate ($250,000 - $499,999.00) $ 710
Probate ($500,000 - $999,999.99) $1,070
Probate ($1,000,000 or more) $1,424
Current as at 1/7/2005

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How long does Probate take?

The average estate can have a Grant of Probate typically issued within 2-4 months. The more complex the estate the longer it takes to identify all assets and liabilities of the deceased. Time guidelines will be discussed at the outset. The Executor then proceeds with the administration of the estate.

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Letters of Administration

When a person dies without leaving a valid Will this creates a total intestacy. This can also be created even if a valid Will was made by the testator but the Will failed in its main disposition, eg if the sole beneficiary predeceased the testator the Will would fall over.

If there is a total intestacy a friend or relative of the deceased (quite often the major beneficiary) will need to make application to the Supreme Court of NSW for Letters of Administration.

At SeniorLaw Sydney we can assist you with the preparation of all necessary documents to make an application for Letters of Administration.

If there is no valid Will in existence an extensive search should be conducted. The person making the application will be required to swear detailed Affidavits confirming the extent of the search for any Will, evidence of any marriage or de facto relationship of the deceased, prior death of other beneficiaries etc. Notice of Intention to apply must be published the newspaper tear sheet lodged with the application.

There can also be a partial intestacy. This happens when only part of the testator’s property is disposed of by Will. For this reason we recommend regular reviews of your Will to reduce the risk of this occurring. If part of an estate falls into intestacy it will be distributed in the same way as a total intestacy is distributed , that is, according to the formula set out in the Wills Probate and Administration (Amendment) Act 1977 (NSW). Distribution is made as set out in the statutory hierarchy of beneficiaries ending with the State of New South Wales.

Documents purporting to be a person's last Will and Testament may be presented to the Court to determine their validity.

See our article "Was there a Will...or was it an Intestacy?"
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Administration of Estates

After you die your Executor will locate your Will. Your original Will may already have been lodged in safe custody with us. Confirmation of the debts and assets of your estate will be undertaken. Depending on the size of your Estate, we can assist your Executor with the preparation of legal documents necessary to apply for a grant of Probate. We can advise your Executor in regard to any challenge to the validity of your Will should this occur prior to Probate.

Your Executor will next proceed with the administration of your Estate. Liquid assets including any bank accounts in your sole name will be closed to provide funds to settle any debts of the Estate. Any claims on your Estate will be addressed. If for instance an ‘eligible person’ makes a Family Provision Act claim on your Estate we would assist your Executor handle this Court matter.

If there are no outstanding claims administration will proceed with distribution in order of entitlement to beneficiaries.
Notice of Death may be required to transfer property to a surviving joint tenant. Probate Accounts may be required.

When there is an ongoing interest under your Will your Trustee will administer the provisions of any testamentary trust. This may apply where you have left funds to minors. In the case of very young children the trust may have to be administered for many years until they reach the age of 18 years and are entitled to claim their benefit. The Will may have specified payment could only be made on a later date for example, when they reach 25 years. Similarly your trustee may also be called upon to manage a trust created for the benefit of a disabled beneficiary throughout his or her lifetime.

We have had over 25 years experience in estate administration. We look forward to assisting Executors and Executrices satisfy the legal requirements of their appointments.

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Intellectual Disability

We offer legal services to people managing an intellectual disability and also parents who may have a son or daughter with an intellectual disability.

People with an intellectual disability are not to be confused with people affected by dementia or psychiatric illness. Intellectual disability is present from birth or acquired as a result of an illness during early childhood. The severity of the person’s disability will determine his or her level of education, employment, type of accommodation, ability to manage money and capacity to make a Will.


Making a Will: Parent of son or daughter with intellectual disability

Every adult should make a Will, but if your son or daughter has an intellectual disability you will need to put in place special provisions in your Will which will take effect upon your death. This will help address their future needs.

There are many misconceptions in the community. In fact an intellectually disabled person can inherit part or all of your estate. An intellectually disabled person can also make a valid Will as long as he or she has the required legal capacity.

There are many important issues for you to consider when making your Will, including:

Is your child with an intellectual disability your only child or are there other siblings?
Whether your son or daughter with an intellectual disability is a minor or adult?
Appointing a testamentary guardian for a minor
Appointment of trustee(s) to manage ongoing trust
The present needs of the person and planning for unexpected needs in the future
Whether your son or daughter can handle simple or ongoing financial matters?
Financial manager appointed by the Guardianship Tribunal?
What happens if you leave part or all of your estate directly to your son or daughter with an intellectual disability?
Would it be preferable in view of the mild level of disability for example to leave assets partly direct and partly by testamentary trust to your disabled son or daughter?
If your intellectually disabled son or daughter inherits part or all of your estate what happens to the assets when he or she dies?

What if your intellectually disabled son or daughter didn’t have legal capacity to make a Will? What is the risk of the Will being challenged, or assets being distributed according to the rules of intestacy?

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SeniorLaw Sydney
ABN: 33 560 807 269
Level 5, Castlereagh Chambers
64 Castlereagh Street
Sydney NSW 2000
Australia
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Fax. (02) 9235 2733
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