Publish Date: Feb 03, 2011
When a person dies leaving a valid will, their estate is distributed according to the terms of their will. Each state has unique legislation setting out the rules for administering the deceased’s estate.
A probate order states that the will has been proven to be the last valid will of the deceased. It allows the executor to collect and distribute the estate in accordance with the terms of the will.
In most cases, the executor of the will must obtain an order for probate from the Supreme Court. However, probate is not required in every case. The need for a grant of probate depends in part on the form in which the deceased’s assets are held as well as the value of the estate. Some asset holders will require the executor to produce a grant of probate before releasing assets above a certain value. This is because the probate order protects these institutions against the possibility of releasing funds to the wrong person. Probate is generally necessary if the estate includes shares, large sums of money or real estate held solely in the name of the deceased person or jointly with another person.
If the will did not appoint someone as executor, or if the named executor dies before the testator, the court will appoint an administrator to carry out the terms of the will. This task usually falls to the major beneficiary under the will. If the person appointed under the will does not want to be the executor, they can give up their right to obtain probate by filing a renunciation. The executor can appoint the state trustee or a private trustee company to act in their place or, alternatively, one of the beneficiaries can apply to the court to become the administrator.
A solicitor can assist with the process of applying for a grant of probate. There are a number of procedures which must be followed. Procedures differ between states. Generally, the first step involves providing notice of an intended application for probate. The purpose of providing notice is to give anyone with an interest in the deceased’s assets, like creditors, an opportunity to submit their claims.
For example, in Victoria, a notice must be published on the Supreme Court of Victoria website at least 14 days before the date of filing an application for probate. In New South Wales, an advertisement must be placed in a newspaper announcing the application for probate at least 14 days in advance of the application. If the deceased lived in NSW, the advertisement must be placed in a newspaper circulating in the area where the deceased lived. If the deceased lived in another state or country, the advertisement must be placed in a Sydney daily newspaper.
After the notice period has lapsed, the probate application may be filed with the Supreme Court. In general, this application includes a sworn statement by the executor that he or she will administer the estate according to the law and that they know of no reason why probate should not be granted. A number of documents must be included with the application including the will, the death certificate, the advertisement and an inventory of the deceased’s assets and liabilities.
If there is no dispute about the will or after any disputes have been resolved, the court will grant a probate order. After a grant is made, the will becomes a document of public record and any person may obtain a copy.
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Elizabeth Heaney
With easy access to cheap and even free will kits why pay a lawyer to draft your will?
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The most popular warning of wills and estates law is to always have a will. It appears that only two options are available: intestate or testate. But even having a valid will can bring about a new option in dealing with an estate if a deceased had more debts than assets, it is necessary that the estate is treated differently than from a normal administration by virtue of the Probate and Administration Act 1898 (NSW).
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One of the essential requirements for making a will is that the testator - the will-maker - has the mental capacity to do so, that they know what they are doing. The same requirement exists for revoking a will, and giving someone an enduring power of attorney does not give the attorney the power to make a will.
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The bond between a pet and an owner can sometimes be so strong, that some people have actually named their pets as beneficiaries after their passing. Many of us have probably read or heard stories someone leaving instructions in their will for the maintenance of their pets, and some of us may have even guffawed at such a practice. However, the fact remains, that many people are rather quite attached to the pets and animals that they own, and there may even be a few readers who are wondering if gifts for maintenance can be made to their own animals. Does Australian law actually allow an animal to become a beneficiary?
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Craddock Murray Neumann Lawyers
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Dominic Wilson
Is it is possible to disinherit your children? Some will makers believe it is or should be.
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Dominic Wilson
The Family Provision Act (1982)(FPA) restricts that freedom to make a will by allowing classes of people, defined in the FPA as “eligible persons”, to make a claim if those persons consider they have been left with inadequate provision for their proper maintenance, education and advancement in life.
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The taxation of estates can be quite complex depending upon the assets held by the deceased. For complex estates, it is important for the executor to have an understanding of relevant taxation principles. An executor’s choices when administering an estate can have a significant effect on the amount of tax paid and who pays the tax.
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The taxation of estates can be quite complex depending upon the assets held by the deceased. For complex estates, it is important for the executor to have an understanding of relevant taxation principles. An executor’s choices when administering an estate can have a significant effect on the amount of tax paid and who pays the tax.
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Some of the world’s super rich such as Bill Gates and Warren Buffet have famously left the bulk of their estate to charity and their children only a small fraction of their fortunes. Can you safely leave the majority of your estate to charity? Can you challenge your parent’s will if they have left a larger portion of their estate to charity than to you?
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Dominic Wilson
The Succession Amendment (Intestacy) Bill 2009 (“the Bill”) was assented on 9 June 2009. It will come into effect from early next year 2010. The laws will change how estates are distributed if the deceased die intestate, i.e. without a valid will. A person who dies without leaving a valid Will is referred to as “the intestate”.
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When making your Will one of the key decisions you must make is who to appoint as your executor.
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The case of Wingrove v Wingrove (1885) is the authority for the proposition that a testamentary disposition does not have a testator’s knowledge and approval if the testator was coerced into making a bequest.
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If the deceased died after 1 March 2009, proceedings for a family provision orders are commenced pursuant to the Succession Act 2009.
The Family Provision Act 1982 was replaced by the Succession Act 2009 on 1 March 2009.
A claimant has 12 months from the date of death in which to commence proceedings for a family provision order.
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Craddock Murray Neumann Lawyers
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Dominic Wilson
In a recent judgment of the Supreme Court in Re Fenwick: Application of JR Fenwick & Re “Charles” [2009] NSW SC530 the Court considered and applied for the first time new provisions of the Succession Act 2006 (NSW), which confer power on the Court to authorise the Registrar to make, alter or revoke a will on behalf of a person who lacks testamentary capacity.
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A Living Will is a document created to clarify intent with regard to future health concerns and treatment. The document itself is legitimised by setting up specific medical Enduring Power of Attorney while a person is in sound mind and able to do. This Power of Attorney may be held with a family member or other trusted person who is given the rights to make decisions regarding health and treatment when the person is no longer able to do so.
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A claim for an order from a deceased person’s estate for a family provision can be made up to 12 months from the date of death.
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Most of us have seen will kits in a newsagency, or seen them advertised on-line or in the press. Buying one is certainly cheaper than seeing your solicitor to make one, but do they work?
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Powers of Attorney are documents that have been around for hundreds of years. Put simply, a Power of Attorney is a document whereby one person – the "donor" – gives another – the "attorney" – the power to sign legal documents on their behalf. They can be given by companies or individuals. For example, banks will sometimes appoint senior staff members to sign various specified documents on the bank’s behalf.
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If you have a combined or blended family, you may wish to consult with a lawyer to consider some estate planning strategies suited to your needs. When people enter into a second relationship, they often have separate assets. They may wish to provide some or all of those assets to their own children, rather than to their new partner and his or her children. There are laws of family provision that must be taken into account when estate planning in these circumstances.
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As Australia’s population rapidly ages euthanasia is becoming an ever more pressing issue. Some people who advocate euthanasia are already at a stage in their illness where they require assistance to take the own lives. This puts any person assisting to bring about the death who is also a beneficiary of the estate in a difficult legal position. Not only do they risk criminal prosecution but it can affect their position as a beneficiary of the estate of the person wishing to die.
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Depending the size of an estate and the nature of the will, being appointed and executor can be an onerous task. For example if the estate is large and includes a variety of assets an executor may spend many hours arranging the sale of those assets to realise their value before distribution. If the will is contentious the executor may be named as a defendant in proceedings brought by beneficiaries or claimants under the will.
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Dominic Wilson
A recent decision in the New South Wales Court of Appeal analysed what is ‘proper maintenance education and advancement in life’ for able bodied adult children – SMILEK V PUBLIC TRUSTEE [2008] NSWCA 190.
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Dominic Wilson
The Family Provision Act (1982)(FPA) allows the court to designate property as “notional estate” and make Orders with respect to notional estate in order to satisfy an order for provision in claims by an eligible person.
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When Barry signed his will he failed to pick up the mistake. When Barry died “The Gin Palace” had already been sold and as a result Tina was left without an inheritance. When such an error is made there are several options open to a beneficiary in Tina’s position.
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Most of us know what a will is, and if we think about it (which often we don't) we know we should have one. Many Australians, however, do not have one, and this can cause extra expense, delays and complications when they die.
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Craddock Murray Neumann Lawyers
When someone dies, the terms of their will can cause jealousy, distress or upset in a surprising number of cases. What can someone do if they think that they have not been treated fairly in a will?
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Craddock Murray Neumann Lawyers
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All working Australians will be members of a superannuation fund, and with that in mind, it’s no surprise that according to the Australian Prudential Regulation Authority, the total amount of superannuation assets at the end of the 2010 financial year was $1.23 trillion. Many individuals will have large superannuation benefits waiting to be cashed upon retirement, however, some people will sadly pass away before they are able to make a claim on their benefit. So the question will arise of how will a person’s superannuation entitlements be dealt with upon their passing, is a natural line of inquiry.
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People who are insolvent, may choose to create a trust to defeat the interests of a creditor. However, for anyone who wishes to create a trust specifically to bypass a creditor’s interests, the law does have the power to render such trusts void, if the effect or the purpose of the trust was to avoid a creditor.
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Craddock Murray Neumann Lawyers
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If someone promises to take care of you financially and then they die, what do you do?
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Who will watch your children in the event of your death? If you have children younger than 18 years, this is a very important consideration. In your will, you may nominate one or more people to be your child's guardian in the event of your death. This may help to avoid any future disputes between family members by making your intentions clear. The question of 'who' is very important to any parent when nominating a guardian for their children, as well as what 'will' happen.
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Consider this example: John and Jill have been married for 10 years and have recently separated. Around 2 years ago Jill’s father died and Jill received an inheritance of $100,000. These monies were deposited into a joint bank account and have been used by the parties to assist in the purchase of a property. Now that the relationship has broken down what becomes of Jill’s inheritance?
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In September Noreen handed Ngaire an envelope and said, “This is my will. You don’t need to read it now. Just hold on to it until I die.” Ngaire did not open the envelope but put it safely away in her top draw.
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Thinking about making a will can be overwhelming. Part and parcel of writing a will is appointing an executor. Many people may not understand the responsibilities of an executor – whether it is appointing one or being named as one.
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The rule with wills is that a later valid will prevails over an earlier valid will. The party claiming that the later will should prevail has the onus of proving that the later will is valid.
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Age, even great age, does not prevent a person having testamentary capacity to make or change their will.
It is not even necessary that the willmaker be able to read or write, as long as appropriate steps are taken to make sure that they understand the will.
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Most of us realise that it is a smart step to have an appropriate will in place, but its important to make sure that your next of kin knows where the will is kept. If a will cannot be located, the estate will be dealt with as an intestate estate and your assets will be distributed according to the law and not necessarily as you would have wanted. The beneficiaries will also ultimately bear higher expenses.
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Most of us realise that it is a smart step to have an appropriate will in place, but its important to make sure that your next of kin knows where the will is kept. If a will cannot be located, the estate will be dealt with as an intestate estate and your assets will be distributed according to the law and not necessarily as you would have wanted. The beneficiaries will also ultimately bear higher expenses.
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Before Jim and Genevieve married they decided to execute mutual wills. A mutual will is where each individual has a separate will but they confer reciprocal benefits on each other. Jim’s will stated that he would leave all of his estate to Genevieve and if she died the estate would be divided equally between their two children Julia and Jonty. Likewise Genevieve’s will left everything to Jim and to their two children if he died.
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Dominic Wilson
Getting to see the will of a deceased can sometimes be a problem. Section 54 of The Succession Act 2006 is designed to overcome that problem.
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When a person dies leaving a valid will, their estate is distributed according to the terms of their will. Each state has unique legislation setting out the rules for administering the deceased’s estate.
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A person can donate their organs after their death. It is advisable to think about whether you would like to donate your organs when drafting your will and informing your relatives.
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Craddock Murray Neumann Lawyers
The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice.
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Craddock Murray Neumann Lawyers
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People usually hear about appointing a guardian in one of three ways: their solicitor may talk about it when discussing a will, a financial advisor may ask if there is one in place, or a retirement village or hospice may require a prospective resident to have one.
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Craddock Murray Neumann Lawyers
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A will may be disputed for a number of reasons and one issue that can arise is a lack of ‘testamentary capacity’ which may mean that the person is lacking the soundness of mind to draft a legally binding will. It is important when a person drafts a will that they have sufficient decision-making capacity when the will is drafted, otherwise the will may be considered invalid, and the courts may decide that a person has died intestate (without a valid will) and their assets will be distributed in line with intestacy laws.
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Estate planning is important. One of the essential purposes of estate planning is to ensure that your beneficiaries receive the maximum possible benefit from your estate. This involves determining the most financially efficient and tax effective way to distribute your estate on death.
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When a person passes away and leaves a valid will, it is up to the executor to make the funeral arrangements, obtain a grant of probate, pay off any debts to creditors and administer the estate of the will-maker according to their wishes. Needless to say, the responsibilities and duties of the executor are quite significant, so it is important that they carry out their role appropriately.
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More and more of us today are doing the wise thing, and appointing attorneys and guardians by Enduring Powers of Attorney and Guardianship Appointments.
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The words used in wills – much like other legal documents – need to be chosen carefully, because terms and phrases can easily be misconstrued and can have multiple meanings. As the person drafting a will, you may know what you meant in the will, but for others who are trying to decipher your wishes, they might have a bit more trouble. Keep in mind that in most instances, an executor and any beneficiaries will only be privy to the information in your will only after you have passed away. So needless to say, you won’t be able to clarify your wishes to the parties involved if any misunderstandings do arise. In order to ensure that your executor is able to administer your property and estate in line with your wishes, it’s important to bear in mind that you should always choose your words carefully when drafting a will.
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Craddock Murray Neumann Lawyers
Most of the disputes about wills fall into one or the other of two categories. These are either that someone has not been provided for adequately in the will, or that some formality has not been complied with.
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Craddock Murray Neumann Lawyers
Premier Jo Bjelke-Petersen of Queensland has been a rather controversial figure in Australian political history, but one of the lesser known facts about him is that he was responsible for the end of death and estate duties in Australia. For many years both the individual states and the Commonwealth imposed death duties, known as estate duty for the Commonwealth version. Premier Jo abolished death duty in Queensland, and the resultant rush of investment into Queensland led to his lead being followed throughout Australia, so there are no death duties as such in our country.
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We acted for the son of the first marriage of the deceased. The second wife of the deceased sought to Probate an unsigned Will.
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In Estate of Slavinskyj (1989), testamentary dispositions written on the back of a packet of cornflakes were held to be valid.
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Craddock Murray Neumann Lawyers
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Craddock Murray Neumann Lawyers
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One of the most common complaints about lawyers and the law is the language used, which has even produced its own name, “legalese”. Why is that?
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Making a will is probably the last thing on your mind right now. Even as people age and raise a family, the idea that our mortality is potentialy a problem is understandably far away from consideration. However, just as people strive to provide for their family as best they can, it is important to take some time to prepare a plan for the possiility that you may no longer be around for your loved ones.
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Making a will is probably the last thing on your mind right now. Even as people age and raise a family, the idea that our mortality is potentialy a problem is understandably far away from consideration. However, just as people strive to provide for their family as best they can, it is important to take some time to prepare a plan for the possiility that you may no longer be around for your loved ones.
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Drafting a will can be a long, complicated process. Once it has been witnessed and filed away for safekeeping, it can be tempting to rarely think about it again. But keeping your will up to date is extremely important. Wills are often made years before a person dies, and there may be significant changes to an estate between when the will was written and when the will is executed.
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Drafting a will can be a long, complicated process. Once it has been witnessed and filed away for safekeeping, it can be tempting to rarely think about it again. But keeping your will up to date is extremely important. Wills are often made years before a person dies, and there may be significant changes to an estate between when the will was written and when the will is executed.
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Craddock Murray Neumann Lawyers
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Lucy’s father died some years ago and her mother, Esther died late last year. Lucy has an older sister who lives overseas and a younger brother. After searching Esther’s house high and low and contacting Esther’s lawyers, Lucy was unable to find any will made by her mother. Esther had a house in Petersham, two bank accounts, a superannuation fund, a car and various personal effects. When Esther died she had a modest credit card debt as well as some outstanding utility bills.
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Under s26 of the Status of Children Act 1996 a party to proceedings may apply to the Supreme Court for an order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child.
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Around half of all Australians do not have a will, so they will not have a say in what happens to their estate when they die! Surprising, but true.
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For many, the processes of estate planning involves thinking about their family and loved ones - trying to take their circumstances into account and considering what measures they would like to take to promote their future happiness.
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A recent decision from the Supreme Court of New South Wales has highlighted the need to keep your Will updated. In the NSW Trustee and Guardian v Ritchie [2011] the NSW Trustee applied to the Court for orders in relation to the administration of the Estate.
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To begin with if you have a complex asset structure an estate planner will be invaluable in making sure your assets are devolved efficiently and in manner that affects your wishes. But more importantly a lawyer is in the best position to ‘future proof’ your will. That is draft it in a way that reflects your wishes and prevents your will being challenged once you die.
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A prominent Cricket fan wishes to make a will, but doesn’t trust anyone associated with the consortium for which he barracks to witness it for him.
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