A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
Whether or not Probate is required depends on the nature and value of the deceased’s assets.
If the deceased held land in their sole name or as a Tenants In Common with another, Probate will be required.
Financial institutions, superannuation funds and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally they will require Probate if the amount held with them is greater than $30,000.
What is involved in obtaining a Grant of Probate?
ascertain assets and liabilities;
file an online Notice of Intention to make an application for Probate;
14 days after the date of publication of the notice of intention send Summons, Grant, Affidavit of Executors, original Death Certificate, Inventory of Property, and original Will to the Supreme Court for filing.
It takes the Supreme Court approximately 6 weeks to issue a Grant of Probate. Once the Grant has been obtained the Executor/s finalise the estate assets and liabilities and distribute to the beneficiaries.
If a person dies without a Will, or with a Will but with no living Executor, the same process applies however grant is called Letters of Administration.
The solicitors at Everingham Solomons have the knowledge and experience to assist you in obtaining grants and estate administration and distribution because Helping You is Our Business.
If your circumstances suddenly changed and you could no longer manage your own affairs, do you have the necessary documentation in place to authorise another person to make financial and legal decisions on your behalf?
If you don’t then you ought to consider making a Power of Attorney.
A Power of Attorney is a document which allows you to appoint someone to manage your financial and legal affairs. For example it empowers your Attorney to manage your assets and operate your bank accounts.
The document may be structured in many different ways so that it is tailored to suit your needs, for example:
You may appoint more than one person.
If you appoint more than one person you can appoint them jointly or independently of each other.
You can make a Power of Attorney for a limited period of time, for example, if you are planning to travel overseas.
You can make an enduring Power of Attorney so it continues to operate even after you lose mental capacity.
You can authorise your Attorney to give reasonable gifts on your behalf.
You can authorise your Attorney to use your money to benefit another person, for example spouse or children.
You can authorise your Attorney to act immediately, or you can require your Attorney to produce evidence of your mental or physical incapacity before they can make decisions on your behalf.
You can impose conditions and limitations on the Attorneys power.
You can give directions regarding management of certain assets.
At Everingham Solomons we have the knowledge and experience to assist you in drafting a Power of Attorney to suit your needs because Helping You is Our Business.
The willmaker was survived by 4 adult children. When the willmaker died he left his $2.25 million estate to 3 of his 4 children. The excluded son, John contested his father’s will claiming his father had failed to make adequate provision for him in the Will. The executors of the Will opposed John’s claim for the following reasons:
(1) John had deliberately estranged himself from his father, and indeed his mother, for most of his life, causing them both great distress; and
(2) John had no need for provision out of his father’s estate, because of his and his wife’s existing personal wealth.
As a child of the deceased John was an “eligible person” to seek to make a family provision claim against his father’s estate. Having met this initial criterion, the Court was required to determine whether there was inadequate provision for John’s “proper maintenance, education and advancement in life”. What is proper means “proper in all the circumstances of the case” taking into account matters such as competing claims on the estate, the needs of the applicant and the testator’s ability to meet such claims having regard to the size of the estate.
The Court held that the provision was not inadequate for John for a number of reasons. Firstly, John had substantial assets already about double the size of the willmaker’s estate, from which provision was being sought. Secondly, this estate was one upon which the beneficiaries of the Will had real and genuine claims. The Court could see “no reason to diminish at all the entitlement of any of the other beneficiaries in this estate, who (as to at least two of them) suffer real and oppressing financial concerns of their own and whose asset positions are considerably less advantageous than John and his wife”. The beneficiaries’ interests weighed heavily in the Court’s view against the notion of any reduction of their share in the estate in John’s favour. The Court found this last consideration to be even stronger when the “tumultuous family history” was taken into account finding that John was the “prime aggressive mover in creating family chaos and disharmony over the years”.
If you have you been left out of a Will, or you are an Executor who is faced with defending a Will, you need to seek professional legal advice. At Everingham Solomons we have the expertise and experience to assist you with all issues relating to Estates because Helping You is Our Business.
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In NSW if a Will maker fails to make adequate provision in their Will for the proper maintenance, education and advancement in life of those entitled to such maintenance and support, a court is empowered to make an order for family provision to an eligible applicant. This applies equally where a person dies without leaving a Will and the rules of intestacy fail to adequately provide for an eligible applicant. Only an “eligible person” as defined in the legislation can apply to the court for provision. In NSW a category of “eligible person” includes a former wife or husband of the deceased.
In 2014 the deceased died without leaving a Will. The deceased was survived by a daughter and a former wife. Pursuant to the rules of intestacy the deceased’s estate of $5 million would pass to his daughter. The deceased’s former wife made an application to the court for family provision.
As a divorced former spouse of the deceased, the deceased’s former wife was an “eligible person” to bring an application seeking provision be made for her from the deceased’s estate. In doing so, the court was required to determine whether, in its opinion, “having regard to all of the circumstances of the case (whether past or present), there are factors which warrant the making of the application”.
The following factors warranted the court in this case making provision in favour of the applicant former wife:-
The applicant’s current circumstances of need;
The respective post-divorce deterioration in the applicant’s circumstances, and great improvement in those of the deceased;
The impact of the applicant’s care responsibility for the daughter of their relationship, for 15 years after the matrimonial property settlement, on her earning capacity, and her corresponding indirect contribution to the deceased’s estate;
The relative paucity of the matrimonial estate at the time of the property settlement, compared to the ample resources now available; and
Where the only other claim on the estate was from the daughter, for whom ample estate will remain after making proper provision for the applicant.
The court ordered by way of provision from the estate of the deceased a lump sum of $750,000 in favour of the applicant.
If you are unsure about your rights to challenge a Will or the laws relating to intestacy when a person dies without leaving a Will, please contact Everingham Solomons because Helping You is Our Business.
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The harsh reality is that if you do not have a Will, you do not have a say.
If you die without a Will – or without an effective Will – your Estate is dealt with under the intestacy provisions in Chapter 4 of the Succession Act 2006.
As an example:
If you have a spouse (somebody to whom you are married, or with whom you were carrying on a domestic partnership, being a relationship in existence for a continuous period of 2 years or resulting in the birth of a child) your spouse will be entitled to the whole of your Estate.
If you and your spouse have children, your spouse is entitled to the whole of your Estate.
If you have children, who are not the children of your spouse, then your spouse is entitled to your personal effects, a statutory legacy and one half of the remainder of your Estate.
There is a simple way to avoid the complexity of intestacy. Make a Will.
The only way to ensure that you have control over deciding how your estate is divided is to have a valid Will.
Once you have made your Will, it is important that you review it every few years and update it as your circumstances change.
At Everingham Solomons we have the knowledge and experience to identify the legal issues relevant to your situation and advise you of the options available so you can make an informed decision that is right for you because Helping You is Our Business.
This is one of the most common questions asked in relation to deceased estates.
Beneficiaries are, understandably, eager to receive their interest in the estate and executors are eager to finalise their duties.
Despite this often mutual desire to distribute the estate quickly, there are several requirements that must be met prior to any distribution.
Probate must be granted by the Supreme Court of New South Wales. Probate establishes the validity of the deceased Will. Once probate is granted, the executors are legally entitled to administer the estate pursuant to the terms of the Will.
Prior to distribution, a Notice must be posted on the Supreme Court website alerting creditors and other interested parties that the executors intend to distribute the estate assets.
What happens if an executor distributes the entire estate leaving no money in the estate and a creditor or beneficiary or tax office or other party comes forward claiming that the estate owes money?
If the executor has complied with certain requirements for distribution of the estate, her/she will not face personal liability for any such claims made subsequent to a full distribution of estate assets.
The requirements are that the estate is distributed at least six months after the deceased date of death and the executor has published a 30 day notice of intention to distribute and that time period has expired.
An additional issue which must be considered prior to distribution, involves claims being made against the estate by a relative or dependant who is seeking a share or greater share of the estate.
Claimants have 12 months from the date of the death of the deceased to file a claim and any executor who distributes the estate prior to the expiration of that 12-month period may be held personally liable if he/she has distributed the estate knowing of a potential claim.
The timing of the distribution of deceased assets by the executor, in each case depends on the facts of the case and an assessment of the particular risk of a claim being made against the estate.
If you need assistance with the administration of the estate contact us at Everingham Solomons Solicitors becauseHelping You is Our Business.
In 2014 Sally made a Will in which she left her property to her son Peter and the remainder of her estate her to daughter Jane.
In 2015 Sally made a Power of Attorney appointing her daughter Jane as attorney.
In 2016 Sally had a stroke and had to go into care.
Jane needs to sell Sally’s property to pay for the nursing home accommodation bond.
Can Jane sell the property?
Provided it is necessary and appropriate in all the circumstances and in Sally’s best interests, Jane can sell Sally’s property and use the sale proceeds to finance the nursing home accommodation bond, regardless of the fact that the property is bequeathed to Peter in Sally’s Will.
What does that mean for Peter?
For Powers of Attorney made prior to 16 February 2004, the common law of ademption applies, that is if the gift to the beneficiary no long exits the beneficiary misses out.
Luckily for Peter, where a Power of Attorney is made after 16 February 2004, which Sally’s was, the harshness of the common law is ameliorated by section 22(1) of the Power of Attorney Act 2003 which states:
“any person named as a beneficiary under the Will of a deceased who executed an enduring power of attorney has the same interest in any surplus money or other property arising from sale or disposition of any property by the attorney under the power of attorney, as the named beneficiary would have had in the property if no sale or dealing had been made.”
This means that when Sally passed away Peter will be entitled to the refund of the accommodation bond, as it represents the proceeds of sale from the house bequeathed to him.
If you want your wishes to take effect, it is imperative that your documents be up to date and properly drafted. You should be aware that each case has unique facts and these general propositions cannot be applied in every circumstance to achieve the same result. The experienced solicitors at Everingham Solomons can assist you with all of your estate planning needs because Helping You is Our Business.
Recent decisions in the Supreme Court have reinforced the Courts preference for keeping family operated farms together in certain situations in circumstances where a Will is contested.
A recent case involving a grazing property near Wagga Wagga upheld the deceased’s wishes to keep together a farming operation that had been left to the son at the exclusion of a claim made by a city-based daughter of the deceased. Whilst the daughter had been able to establish need she was ultimately unsuccessful.
When determining need “the court also considers the nature, extent and character of the estate.” The character of the estate in an example of a rural estate with its major asset a working farm is a significant factor that a court will consider.
When considering Provision Claims the Court will assess the needs both present and future of a person of whom makes an application for Family Provision. In the context of rural estates the term “Need” is very much an ambulatory concept.
A deceased testamentary intention to keep a farm together as an integrated economic unit, managed and run by a beneficiary of their choosing is something that a court gives significant weighting to.
Arguments about fairness between children of the deceased can be overtaken by a clearly expressed intention of the deceased. The position of the Supreme Court is that it has no mandate to simply “ride roughshod over the testator’s intentions”
When considering breaking up a rural estate a Court will look to whether or not the viability of the farm is dependent upon it operating as an integrated whole and if the deceased’s intention to keep the farm together was made clear.
The recent decisions of the Supreme Court only stand to emphasise the need to have a clearly defined succession plan in place. At Everingham Solomons we can assist with such planning because Helping You is Our Business.
To make a valid Will a person must be of sound mind when the Will is made. Where a Will is the product of undue influence then it may be declared invalid if undue influence can be proven by the person alleging it. Undue influence goes beyond mere persuasion. “The essence of undue influence is coercion of the will so that the [Willmaker] does that he or she does not desire to do”. One recent Victorian case refused an application that there was undue influence exerted over the Willmaker when she made her Will.
In 2015 the deceased died at the age of 91 survived by 3 adult sons. The deceased made a Will in 2013 whereby she appointed a family friend and one of her sons as the executors of her Will. The deceased left her residuary estate to be divided between her three sons as to 20 percent, 35 percent and 45 percent respectively. The son who received only 20 percent of his mother’s estate applied to the Court alleging that the 2013 Will was invalid because it was obtained as a result of the undue influence of his two brothers who had the care and control of his mother before she died.
An allegation of undue influence is a serious matter and must be proved on the balance of probabilities and supported by full particulars. “To prove undue influence, it must be shown that the [Willmaker] did not intend and desire the disposition. It must be shown that she has been coerced into making it”.
The applicant son relied on the following matters:
(a) the applicant son placed the deceased in residential care in October 2012;
(b) some four weeks into her stay in residential care, one of his brothers removed her from residential care;
(c) thereafter the deceased was under that same brothers ‘care and control’; and
(d) the deceased executed her Will when she was being kept substantially isolated from the applicant son until her death.
Applying the test of undue influence to the particulars in this case the Court stated “there is no allegation of influence let alone that the influence was undue. There is no allegation that, in making the dispositions under the 2013 Will, the [will maker] was coerced or that her will was overborne in circumstances that her judgment was not convinced”.
It is important to note “the fact that an allegation of undue influence is a serious allegation does not mean that, in an appropriate case, it should not be made”. However “Particulars which are consistent only with the opportunity to influence a will maker are not sufficient” to prove undue influence.
At Everingham Solomons we have the experience and expertise to assist you in all matters concerning your Will or that of a recently deceased family member because Helping You is Our Business.
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Too often people don’t devote the time they should to making a valid Will and keeping it up to date. Making a valid Will is one of the most important things a person can do to protect their loved ones. Once made, a Will should not be shoved to the back of a drawer and forgotten. Over time a Will needs to be reviewed and updated to reflect life changing events. You should seek professional advice to ensure your Will reflects your wishes and is in conformity with the law. The pitfalls of not doing so could mean an expensive court case as the following case demonstrates.
The deceased died in 2011 leaving a substantial estate and a 2010 Will. After his death, a further document titled “My Last Will and Testament” dated 16 January 2011 was found amongst the deceased’s personal papers. The 2011 document had been prepared by the deceased and although signed by him, it was not in conformity with the formal requirements for making a valid Will in NSW because it was not signed by the deceased in the presence of two witnesses.
When a document fails to comply with the formalities required to make a valid Will, an application can be made to dispense with the requirements for making a Will where the court is satisfied that the person intended the document to form his or her Will. An application was made by the executors of the 2010 Will to determine whether the 2011 document was intended by the deceased to form his Will.
In the months preceding his death, the deceased typed instructions for new Wills and gave those to his solicitor to enable new Wills to be prepared for him. The instructions were all headed “My Last Will and Testament” and took the same form as the 2011 document. Just two and a half weeks after making the 2011 document the deceased attended his solicitor’s office but did not mention to his solicitor that he had changed the Will which the solicitor had prepared for him less than six weeks previously.
In describing the deceased as a “seasoned Will-maker” the deceased’s solicitor gave evidence that the deceased was well aware that a Will should be signed in the presence of two witnesses and in his view the deceased would not have wished to leave the enforceability of such a significant document as his Will to chance.
Ultimately the court was not satisfied that the deceased intended the 2011 document to form his Will. On the question of why the 2011 document was signed by the deceased, the court inferred that the deceased did so to record his then thoughts without intending the document should have immediate operation as his Will.
Don’t leave your Will to chance and risk having your wishes go unfulfilled. At Everingham Solomons we have the expertise and experience to assist you in making a Will Because Helping You is Our Business.
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A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
