PROBATE AND DECEASED ESTATES

There are established legal processes in place for when a person dies so that his or her estate can be distributed and administered in accordance with the deceased person’s wishes and the law.

If you are an executor or potential beneficiary of the estate, it is vitally important that you obtain the services of an experienced Probate solicitor to assist you with these processes.

As an executor or trustee of a deceased person’s estate, you have the highest legal obligations that apply to the way you perform that role. Not the least, you must ensure that the beneficiaries of the estate receive distributions and benefits of the estate in a lawful and transparent manner.

Our experienced solicitors can assist you and the deceased’s family through the legal process and to apply for Probate or Letters of Administration in a timely and efficient way.

Please click on the subcategories of Contested Estates, Probate, Intestacy and Administration for more information.

CONTESTED ESTATES

FAMILY PROVISION CLAIM

HAVE YOU BEEN CUT OUT OF A WILL?

You may be eligible to apply for a family provision claim if you have not been provided for or have been inadequately provided for by an estate if you belong to a class of persons who would ordinarily be a beneficiary in a Will e.g. spouse, children, grandchildren etc.

The Succession Act 2006 (NSW) includes provisions in relation to the types of persons who may be eligible to make a family provision claim and the matters which the Supreme Court would take into consideration in making the order.

The applicants must satisfy these provisions in order to make a successful claim against the estate. If the Court is satisfied that the applicant is an eligible person and has not received (adequate) provision for the proper maintenance, education of advancement in life, it may make appropriate orders to adjust the interests that are created by the Will of the deceased, if there is a Will, or the interests under the rules of intestacy.

The application involves filing relevant Court documents and Affidavits, attendance at mediation and, if it is not resolved at mediation, a hearing at the Court.

WHAT IS THE TIME LIMIT?

The application for a family provision order must be made within 12 months of the date of death of the deceased person. We urge that you seek legal advice on this as early as possible.

IF YOU ARE THE EXECUTOR OF AN ESTATE SUBJECT TO A FAMILY PROVISION CLAIM

If the estate of which you are the executor, you would be indemnified by the estate of the costs of defending the family provision claim. The estate may not be distributed until the family provision claim is settled or resolved.

We suggest that you seek legal advice as early as possible if you are in this position.

PROBATE

IF YOUR LOVED ONE DIES WITH A VALID WILL

If a person has a valid legal Will at the time of death, the Supreme Court of NSW will generally grant Probate to his/her executor to manage his/her estate. Bay Legal can assist with the various steps that are usually sought by relatives and those close to the deceased person. These include:

  • Preparing the background information and original documents required for an application to the Supreme Court;
  • Gaining access to bank accounts and superannuation funds of the deceased;
  • Correspond with any creditors of the estate;
  • Transferring real estate and other assets to the intended beneficiaries; and
  • Pursuing claims and receiving compensation on behalf of the deceased person.

If the deceased person dies with a valid legal Will, it is usually necessary to obtain a grant of Probate from the Supreme Court so that the executor of the will can deal with the assets and liabilities of the estate in accordance with the deceased’s wishes.

When the Supreme Court issues a grant of Probate the executor then has the legal authority showing that the Will is valid and he/she may administer the estate according to the law and distribute assets to the beneficiaries named in the Will.

Complexities can arise with all of the above processes and they can be daunting and stressful to the families as well as the executors.

WHAT IF THE PERSON DIED WITHOUT A WILL?

Under this circumstance the person will be regarded as dying intestate. Instead of Probate, the next-of-kin should apply to the Supreme Court for Letters of Administration.

Intestacy cases often involve complicated issues. We strongly suggest that you seek legal advice if you are dealing with an intestate estate.

WHAT ABOUT OTHER DISPUTES THAT ARISE BETWEEN COMPETING PARTIES OVER AN ESTATE?

For many reasons, the administration of a deceased person’s estate is not always a smooth and seamless process, particularly if there are vagaries in, or the absence of a Will.

Also, when one or more persons (e.g. relative or someone close to the deceased person) claim a share of the estate, the potential for legal complexities arise.

Regardless of where you may find yourself in relation to a deceased person’s estate that is contested, our solicitors can assist you in these circumstances and help you steer a course to the outcome you are seeking.

The law makes provision for disputed estates and our solicitors are experienced in working with clients to help them obtain the best result possible in difficult and trying circumstances.

WHAT IS THE TIME LIMIT?

The application for Probate must be made within 6 months of the date of death of the deceased person. We urge that you seek legal advice on this as early as possible.

WHO IS RESPONSIBLE FOR LEGAL COSTS?

It is usually the case that an executor or an administrator can have the legal costs of Probate or Letters of Administration paid for from the funds of the estate.

Our solicitors at Bay Legal are happy to discuss your circumstances and assist you with managing any costs that apply.

INTESTACY

WHAT HAPPENS IF YOUR LOVED ONE DIES WITHOUT A VALID WILL?

If a person dies without a valid legal Will then he/she is deemed to have died intestate and an application must be made to the Supreme Court for a grant of Letters of Administration.

The Succession Act 2006 (NSW) determines who will receive the intestate estate in accordance with the circumstances of the family. For example, the deceased’s spouse will be entitled to the whole of the estate. If there is no spouse, the deceased’s children will be next in line for the inheritance.

An appropriate person must apply for Letters of Administration from the Supreme Court, which will allow the appointed Administrator to deal with the assets and liabilities of the estate.

In the absence of a Will, this process can be challenging and Bay Legal strongly recommends that you seek legal advice before you embark on the process.

WHAT IF THE PERSON DIED WITH A VALID WILL?

The Executor(s) should apply to the Supreme Court for a grant of Probate, not Letters of Administration.

WHAT ABOUT OTHER DISPUTES THAT ARISE BETWEEN COMPETING PARTIES OVER AN ESTATE?

For many reasons, the administration of a deceased person’s estate is not always a smooth and seamless process, particularly if there are vagaries in, or the absence of a Will.

Also, when one or more persons (e.g. relative or someone close to the deceased person) claim a share of the estate, the potential for legal complexities arise.

Regardless of where you may find yourself in relation to a deceased person’s estate that is contested, our solicitors can assist you in these circumstances and help you steer a course to the outcome you are seeking.

The law makes provision for disputed estates and our solicitors are experienced in working with clients to help them obtain the best result possible in difficult and trying circumstances.

WHAT IS THE TIME LIMIT?

The application for Letters of Administration must be made within 6 months of the date of death of the deceased person. We urge that you seek legal advice on this as early as possible.

WHO IS RESPONSIBLE FOR LEGAL COSTS?

It is usually the case that an executor or an administrator can have the legal costs of Probate or Letters of Administration paid for from the funds of the estate.

Our solicitors at Bay Legal are happy to discuss your circumstances and assist you with managing any costs that apply.

ESTATE ADMINISTRATION

ARE YOU THE APPOINTED EXECUTOR OF ADMINISTRATOR OF A DECEASED ESTATE?

ARE YOU AWARE OF YOUR LEGAL OBLIGATIONS IN THE ADMINISTRATION OF A DECEASED ESTATE?

If you are the executor appointed in the deceased person’s Will, or the administrator appointed by the Court for an intestate estate, you have the responsibilities to administer and distribute the estate in accordance with the Will (if there is one) and/or the law.

An estate can comprise real properties, bank accounts, motor vehicles, household contents, art collections, shares, investments, jewellery and other personal belongings.

You are also responsible for locating the deceased’s superannuation accounts and pursuing relevant death benefits.

It is a time consuming process for the executor/ administrator to gather the assets of the deceased, pursue the debts owed to the estate, attend to pay the liabilities of the estate and to distribute the residual estate of the deceased to the beneficiaries.

You, as the executor or the administrator of an estate, are also responsible for managing and finalising the deceased’s individual’s and estate’s tax affairs.

WHO IS RESPONSIBLE FOR LEGAL COSTS?

It is usually the case that an executor or an administrator can have the costs of estate administration paid for from the funds of the estate.

WILLS AND ESTATE PLANNING

Have you done everything necessary to ensure that your assets and wealth will be in good and legal order after you are gone?

Have you organised in writing for someone to take care of your finances as well as your medical and personal affairs in the event you are unable to do so yourself during your lifetime?

Are you planning to travel interstate or overseas and needing to give authorisation to a trusted person to look after your investments and finances?

Careful estate planning is important to ensure that your hard-earned nest egg is protected and divided the way you intend it and to prevent costly legal disputes.

Bay Legal is committed to providing you with great peace of mind knowing for certain that you and your assets are well looked after during your lifetime and after your departure.

WILLS

PEACE OF MIND

It is vitally important to have your Will prepared in accordance with your personal circumstances. It ensures that your many years of achievement and valuable assets are correctly managed and bequeathed in due course to your intended beneficiaries.

You will receive great peace of mind having the certainty that your estate will be distributed in accordance with your wishes.

TESTAMENTARY TRUST

Are you considering dividing your estate to minor children, persons with a disability, persons with addiction problems or persons who may go through divorce proceedings?

How do you best protect your estate after your departure?

If you have or will have a large or substantial estate, we encourage you to consider incorporating testamentary discretionary trusts into your Will which could offer your beneficiaries with the maximum asset protection, tax advantages and flexibility over their inheritance.

Speak to us today about planning your estate and how we can tailor your Will to best suit your personal circumstances.

INVALID WILL OR NO WILL

Is your current Will a self-made Will written entirely by yourself or a Do-It-Yourself Will kit from the news agency?

There are strict laws which need to be followed to ensure the legitimacy of a Will.

If a Will is found to be lacking the appropriate form, then it can be invalidated and it is as if there was no Will at all. This may cause great inconvenience and emotional strain on your next-of-kin and family in dealing with your estate.

We will also provide you and your Executors with certified copies of your Will and hold your original Will in our safe custody free of charge.

POWERS OF ATTORNEY

Have you legally authorised someone to manage your financial affairs on your behalf when you are unable to do so yourself?

Are you planning to travel interstate or overseas and needing to give authorisation to a trusted person to look after your investments and finances?

A Power of Attorney gives authorisation to your attorney(s) to look after your financial, business and legal affairs on your behalf e.g. banking, paying bills, taxation, managing your investments and dealings with your properties.

You may require a Power of Attorney in various circumstances, such as when you take a trip overseas or interstate, when you undergo a medical procedure or for a time when you are no longer able to manage your own finances.This document is particularly important for elderly people.

This document is particularly important for elderly people.You could have us prepare a General Power of Attorney, which loses its effect after you have lost capacity to manage your affairs, or an Enduring Power of Attorney, which has a lasting effect and continues after you have lost capacity.

APPOINTMENTS OF ENDURING GUARDIAN

You may wish to appoint an Enduring Guardian to make lifestyle, health and medical decisions for you when you have lost capacity to do this for yourself.

Your Enduring Guardian may help you to decide a place for you to live, your care services and the medical treatment you should receive. In circumstances where you are unlikely to recover from your condition, you can direct your Enduring Guardian in writing that you do not wish to undergo medical procedures that will not meaningfully prolong your life.

This document is particularly important for elderly people.

ASSET PROTECTION

Thinking of structuring your assets for maximum protection from creditors, family members with spendthrift lifestyles and immature beneficiaries?

Bay Legal solicitors could help you to improve your personal and business asset protection and estate planning to best suit you.

FAMILY / DISCRETIONARY TRUSTS

WANT MORE PROTECTION FOR YOUR ASSETS AGAINST POTENTIAL BANKRUPTCY OR DIVORCE PROCEEDINGS OR SPENDTHRIFT HABITS OF FAMILY MEMBERS?

Consider setting up a family discretionary trust. It gives a wide discretion to the trustees of a discretionary trust to allocate the capital/ income of the trust to the beneficiaries, without an obligation to do so. It is also within the trustees’ discretion to decide how much each beneficiary will receive e.g. a bigger allocation to young family members who are still attending schools or universities compared to the payment to adult beneficiaries who are high income earners.

A family discretionary trust could provide access to favourable taxation treatment through distribution of trust income, as well as protect the family group’s assets from the liabilities and creditors of one or more of the family members.

It is a powerful tool for estate planning and asset protection.

As opposed to a testamentary trust, a family trust is set up and operates during the lifetime of the family members and the trust assets can be passed on to future generations.

TESTAMENTARY TRUST

Are you considering dividing your estate, upon your death, to minor children, persons with a disability, persons with addiction problems or persons who may go through divorce proceedings?

How do you best protect your estate after your departure?

Have you considered how you could better protect your estate assets by creating testamentary trusts in your Will?An appropriately drafted testamentary trust can save your beneficiaries significant amounts of tax, as well as enhancing asset protection against loss through divorce, waste, bankruptcy or other disasters.

An appropriately drafted testamentary trust can save your beneficiaries significant amounts of tax, as well as enhancing asset protection against loss through divorce, waste, bankruptcy or other disasters.Assets held in trust are afforded some protection from loss simply by virtue of being trust assets. This especially protects primary beneficiaries who have not reached the preservation age (e.g. minor children or immature beneficiaries) from wasting their inheritances.

Assets held in trust are afforded some protection from loss simply by virtue of being trust assets. This especially protects primary beneficiaries who have not reached the preservation age (e.g. minor children or immature beneficiaries) from wasting their inheritances.Testamentary trusts can only be incorporated into Wills and are only effective after the death of the testator. They cannot be set up during the lifetime of the testator.

Testamentary trusts can only be incorporated into Wills and are only effective after the death of the testator. They cannot be set up during the lifetime of the testator.