What is a Will?
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
to make a Will?
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?
a Will to be valid it should be:
writing - this can be either handwritten, typed
- your signature is required, and any alterations
made before you sign must be initialed by you
and your two witnesses;
- two must be present when you sign your Will
and they must sign in your presence.
a Will is not made in this way it may not be enforceable.
offer a free safe custody service to all our clients
for safe-keeping of original Wills.
Reasons Why You Need A Will
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.
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
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
Beneficiaries may not include
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
Without a Will your family will
be faced with more legal hurdles
trying to administer your estate.
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
Certain assets may fall into intestacy
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.
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.
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
a person as guardian ( or substitute
guardian) of your minor children.
of the Executor
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.
do I do if I'm named as an Executor in someone's
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.
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.
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.
SeniorLaw Sydney we are committed to ensuring you
are regularly kept informed of ongoing progress
in administering the estate.
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
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.
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
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
Will of the deceased, and also
Executor’s authority to administer
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
This grant of Probate is usually a formality
where there is no dispute involved.
Probate always necessary?
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.
can I do if there is a dispute before Probate
is even granted?
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.
the grant of Probate final or can it be challenged?
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.
much does it cost to file a Probate application?
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:
(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
long does Probate take?
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.
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.
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.
SeniorLaw Sydney we can assist you with the preparation
of all necessary documents to make an application
for Letters of Administration.
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.
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.
purporting to be a person's last Will and Testament
may be presented to the Court to determine their
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.
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.
there are no outstanding claims administration will
proceed with distribution in order of entitlement
Notice of Death may be required to transfer property
to a surviving joint tenant. Probate Accounts may
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.
have had over 25 years experience in estate administration.
We look forward to assisting Executors and Executrices
satisfy the legal requirements of their appointments.
offer legal services to people managing an intellectual
disability and also parents who may have a son or
daughter with an intellectual disability.
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
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.
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.
are many important issues for you to consider when
making your Will, including:
to SeniorLaw Services
33 560 807 269
5, Castlereagh Chambers
64 Castlereagh Street
Sydney NSW 2000
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