Wills & Estates
Our wills are drafted in plain English in accordance with the best precedents available, those recommended for years as best practice. A properly drafted will makes estate administration uncomplicated and less likely result in expensive litigation.
We can also assist in making and defending claims challenging the validity and provisions in a will.
Preparing a Will
If you die without leaving a valid Will, your assets may not be distributed in accordance with your wishes, unless properly drafted and provision is made for beneficiaries to reduce the likelihood of the will being challenged under the provisions of the Succession Act 2006, after your death.
Dying without a Will is referred to as dying intestate. In such cases, the law determines how your assets will be shared, which is generally in accordance with a predetermined statutory formula.
Your Will should be tailored to your circumstances, and its complexity is generally determined by your family structure, the nature and extent of your assets, the beneficiaries you wish to include (or exclude), any trusts and structures you have in place or would like to create and the need to protect your estate from a claim on your estate by any person likely to claim under the Succession Act 2006 or challenge the validity of your will. This can only be done after giving your solicitor detailed instructions and you taking detailed legal advice.
We recommend reviewing your Will regularly, particularly when your personal and financial circumstances change. Important life events such as marriage, divorce and the birth of a child; or financial changes like purchasing a home, receiving an inheritance or buying a business or investment property could all trigger the need to update your Will.
We ensure that you are given full and detailed advice in relation to the provisions of the Succession Act 2006 to ensure that your will is less likely to be challenged by those persons eligible to make a claim for provision if not sufficiently provided for in your will.
Our solicitors have extensive experience in estate litigation and can advise you in the light of that experience, of the likelihood of a claim being made in relation to your will, and the price that will be paid in legal fees and destruction of family relationships as a consequence of any attempt to exclude a beneficiary from the will.
Powers of Attorney and Guardianship Appointments- what happens if you are incapacited?
While a will governs what happens to your estate in the event of your death, if you become incapacitated your family needs the assistance of two additional documents: –
A Power of Attorney assists your family in managing your legal and financial affairs, operating on your bank accounts, buying and selling real estate, claiming your superannuation and insurances etc.
A Guardianship Appointment assists your family in managing your health and lifestyle decisions and may include an advanced care directive.
Your Attorney and Guardian maybe the same person or different people and you can appoint two or more to act jointly or independently of one another. Often if your chosen appointee may not wish to act (due to age or illness) you can appoint one or more substitutes to act in those circumstances.
Your superannuation and life insurance do not form part of your estate and cannot be disbursed by direction in your will unless the nominated beneficiary of the policy is your estate (the Legal Personal Representative).
The proceeds of these policies are disbursed in accordance with the terms of the super fund’s trust deed or the insurance policy. Without a binding nomination, the fund or policy may allow for distribution amongst a number of persons including anyone alleging to be a spouse or partner, child or other dependant as at the date of your death and any person nominated by you as beneficiary. It may take months for a trustee to establish who was in fact dependent and the extent to which they will abide by your nominations or instead pay to anyone who claims an entitlement.
If you make a binding nomination, the trustee’s discretion is removed. A binding nomination ensures the funds are paid to the persons you intended to receive them. Some funds binding nominations lapse after 3 years, some are non-lapsing, some are made like a will (in writing and signed by two witnesses) others are able to be done online.
We ensure that all our estate planning clients have valid wills and binding nominations for superannuation. We ensure that the superannuation nominations are taken into account in drafting their wills so that the two documents achieve our client’s estate planning objectives.
These can differ widely depending on clients’ assets and family situations, particularly in blended families with children to be provided for and the possibility of estate litigation is to be avoided. In some cases, it can be better for superannuation to be left to your Legal Personal Representative to distribute under your will, rather than to specific beneficiaries. In these circumstances the taxation consequences need to be taken into account after detailed legal advice.
Are you an executor?
If you are an executor named in a Will, your main duty is to preserve and get in the assets of the deceased, pay their debts and then distribute the assets in accordance with the provisions of the will.
This generally includes identifying and protecting property, paying or collecting outstanding debts, lodging tax returns for the deceased and after death the estate and claiming superannuation and funds under insurance policies, Executors often need to deal with various stakeholders such as financial institutions, real estate agents, valuers, accountants, and beneficiaries.
The role of an executor is usually carried out under the advice and guidance of a solicitor and we have over 25 years of experience in estate administration for our clients in the Hawkesbury managing the administration of deceased estates.
Executors will also need to determine whether a Grant of Probate is necessary or recommended.
What is Probate?
A Grant of Probate is an order of the Supreme Court of NSW that confirms that a deceased’s Will is valid and appoints the persons who are authorised to deal with the deceased’s assets. Once probate is granted an executor can begin administering and distributing assets in accordance with the Will.
Probate may not be required in all instances, particularly for small and simple estates, for example, where the main asset is the family home which is jointly held between the deceased and a surviving spouse or partner. In such cases, the home will pass to the surviving joint owner without a Grant of Probate.
Some banks will not require Probate where the total balance in their accounts held by the deceased is under about $40,000. Most nursing homes issue a refund of the RAD without the necessity to obtain a Grant of Probate- some however still insist on a Grant before releasing the RAD.
If it is necessary to obtain a Grant of Probate, executors provide us with instructions to act for them and we take all necessary steps for the Grant and then the Administration of the Estate- making their job easy and stress free. A Probate Advertisement is made on the Court’s online Portal. Once the Death Certificate is received by the executors (usually about 3 weeks after the funeral), then we make enquiries of the assets holders to determine the estate assets and values. We then draft all the necessary Court documents.
The Court takes about 4 weeks to process an Application for Probate. Once we receive the Grant, we then forward all the necessary documents to the asset holders to have the assets liquidated and the funds paid into the estate’s trust account. We arrange for the transfer of property to beneficiaries or if it is to be sold, into the names of the executors so that they can attend to its sale.
We act on the sale also. Once all the estate funds are in the trust account, we prepare a Schedule of Receipts and Disbursements and attend to the distribution of the estate funds to the beneficiaries.
Estate administration is very rewarding and satisfying work and we have been honoured to represent countless families in the Hawkesbury over 25 years during this often sad and difficult time.
Family Provision Claims
Making a Claim
If you have been left out of a Will, or you have not received what you believe you are entitled to from a deceased estate whether or not the deceased made a will, you may be eligible to make a claim under the Succession Act 2006, in order to obtain a share or larger portion of the estate.
NSW has some of the most generous family provision legislation in the world under the Succession Act. While children, spouses, ex-spouses, de factos, ex-de factos, dependants, former dependants including foster children and parents are all eligible to make a claim if not provided for, in addition you may make a claim if you were in a “close personal relationship” with the deceased. We can advise you if you are eligible to make a claim. Not only must you be eligible, but also you must also establish that you have a financial need, and that as such the deceased had an obligation to provide for your future maintenance and advancement.
Often it is alleged by the executors that claimants have engaged in disentitling conduct where a relationship had broken down between a claimant and the deceased. Claimants must be prepared to meet these allegations and to disclose in full their financial circumstances and future needs.
Mediation is compulsory in this jurisdiction and most claims are settled at mediation. If not settled at mediation, a court will decide whether you are entitled to such a claim, and in doing so will consider a number of factors including the value of the estate, your relationship with the deceased and to what extent you may have already been provided for under the deceased’s Will or during their lifetime.
Such claims must be made within 12 months of the date of the deceased’s death, Court are presently very reluctant to allow claims to be made out of time.
Defending a claim
If you are the executor of an estate, it is your duty to uphold the Will against any claims which are made against the estate. In doing so however, it may be wise to consider settling a claim which is likely to succeed in court, rather than depleting estate funds through excessive legal fees and court costs. In such cases, getting sound legal advice is essential.
If the claim cannot be resolved by mediation, the executor must provide evidence to the court in order to uphold the beneficiaries’ entitlements contained in the Will. This may include evidence as to the financial circumstances of the other beneficiaries, whose consent is generally required for any settlement with any claimant.
It is essential that an executor withhold distributing assets from the estate for the prescribed 12 months in which a claim may be made if such a claim is likely or if warning has been given that such a claim will be made. If such a claim is successful, and there are insufficient assets remaining in the estate, the executor may be personally liable to pay any judgement awarded to the claimant.
Estate planning can be complex, but it is essential to ensure that your hard-earned assets are dealt with, as far as is possible, according to your wishes. We can help you to prepare a Will and other estate planning documents to ensure your assets are distributed to your intended beneficiaries, and that your affairs are entrusted to those you choose if you are incapacitated and to ensure that expensive litigation is less likely after your death.
If you believe that you have been unfairly treated under the terms of a Will or potential distribution of an estate on intestacy, we can assist you in determining your eligibility to make a claim and help you achieve a fair outcome.