What is probate and when do I need it? – Suzanne Hindmarsh

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 tenants in common with another, Probate will be required.

Financial institutions, superannuation funds, aged care facilities and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally, such institutions will require Probate if the amount held with them is greater than $50,000.00.… Read More

Giving The Gift Of Life – Lesley McDonnell

I am often asked by clients who want to donate their organs, if they should include this wish in their Will. Due to the fact that a Will is not read until after a person’s death, there are better options for people to record their wishes to donate their organs.

Firstly, the Australian Organ Donor Register is Australia’s only national register that enables people to record their decision about becoming an organ donor after their death. Registration is easy, voluntary and allows a person to choose which organs and tissues they are willing to donate. There are a number of ways to register including, but not limited to, the following:

Register through your existing online myGov account;

Register using an Online form through https://donatelife.gov.au website;

Download a registration form from the Department of Human Services website at www.humanservices.gov.au; or

Visit a local Department of Human Services Centre and pick up a Donor Register brochure and registration form.… Read More

The importance of a Will and its whereabouts – Lesley McDonnell

LAMA Will is a legal document which sets out who will receive your assets when you die. Taking the time to make a valid Will is an important first step but it is not the end of the story. A Will should be reviewed regularly and particularly when significant life events occur such as marriage, divorce, birth of a child, or if one or more of your beneficiaries die. Equally so, you should always keep your Will in a safe place and let the Executor(s) of your Will know where it can be located. This is because if a Will cannot be found at your death, it can lead to considerable uncertainty, distress and expense for your family as the following case illustrates.… Read More

The deceased estate time line – Suzanne Hindmarsh

I’m frequently asked what steps need to be taken when someone dies and how long will it take?

SMHThe usual steps are:-

  • Evidence of death is required. In most cases, this is a death/funeral notice published in the local newspaper.
  • The death certificate is required. This certificate takes about 4 – 6 weeks to be issued by Births Deaths Marriages and provided to the executor/Estate’s solicitor.
  • The funeral account can be paid from the deceased’s bank account if sufficient funds are available.
  • We advise the relevant asset/liability holders of the death and provide certified copies of the death certificate. They provide us with details of the deceased’s accounts and their requirements to release the assets/liabilities of the Estate.
Read More

Does a Marriage or Divorce Revoke a Will in NSW? – Terry Robinson

TLRbwQuite often during marriage, separation and/or divorce, estate planning is the last thing on your mind. There can however, be a number of serious repercussions for your wealth, when getting married or splitting up.

It is important to know that getting married revokes a person’s existing Will. Therefore if you die after getting married, you may die without the benefit of a Will and your assets may pass to beneficiaries who you would not otherwise have chosen.  This is particularly relevant in second and third marriages.

People should immediately update their Will as soon as possible after marriage or alternatively execute a Will prior to their marriage which is made in contemplation of their marriage to a certain person.… Read More

Inadequate provision for deceased’s children under the rules of intestacy – Lesley McDonnell

LAMThe deceased died in 2016 without leaving a Will. The deceased was survived by his estranged second wife, his ex-wife, and his two children, Thomas and William aged 19 and 16 respectively. The value of the deceased’s distributable estate was just over $430,000. At the time of his death, the deceased and his second wife had been separated for several years with the Court noting “There can be little doubt…the marriage had irretrievably broken down”. As the deceased died intestate (without leaving a Will) the deceased’s estate was distributed “not according to the wishes of the deceased as expressed in a Will, but according to a regime established by statute”.… Read More

Be specific when making your Will – Ken Sorrenson

KJSbwA recent decision of the Western Australian Supreme Court was a timely reminder of the need to be specific when making a Will.

The deceased was a wealthy grazier who died leaving a number of farms and a significant number of Murray Grey cattle.

In his Will he made a provision gifting a farm to a particular person.  The Will went on to say that the gift of land included all farming plant and machinery on that land.

The issue before the Court was whether the cattle that were normally grazed on that land were included in the gift or putting it in another way, whether cattle came within the accepted meaning of “plant and machinery”.… Read More

Forfeiture of inheritance from deceased brother’s estate – Lesley McDonnell

In 2008 the deceased died at the hands of one of her two sons. In 2012, son Brent was tried and convicted before the Supreme Court of Western Australia for the murder of his mother. In 2014 this family was again touched by sadness when Brent’s brother and only other child of the deceased, Adrian passed away.  Adrian died without leaving a Will which meant his estate would be distributed according to the rules of intestacy. In 2016 a grant of letters of administration of Adrian’s estate was made to the Public Trustee (WA).

The Public Trustee (WA) made an application for direction from the Court as to how to distribute the part of Adrian’s estate which was made up of inheritance from his deceased mother’s estate.… Read More

Unsent Text Message upheld as a Will

LAMIncreasingly people live their lives through their mobile phones. In 2016 tragically a man took his own life but he left an unsent text message on his mobile phone recording his last wishes. A friend of the deceased accessed the phone after he died to look through the contact list to determine who should be informed of the deceased’s death. The friend discovered the unsent text message which stated that the deceased’s brother and nephew should “keep all that I have house and superannuation, put my ashes in the back garden”.

 A family feud erupted over the status of the unsent text message left by the deceased.… Read More

With trust comes responsibility – Lesley McDonnell

LAMAn Attorney acting pursuant to a Power of Attorney is required to comply with any and all conditions and limitations of the Power of Attorney instrument. A failure to do so, can result in the Attorney’s actions being declared unauthorised which in turn can lead to unintended consequences as the following case illustrates.

The deceased died in 2008. By her Will, the deceased gifted her interest in some real estate to her daughter. Some years before her death in 2002, the deceased had granted an enduring Power of Attorney to her son. In 2006 the deceased’s son signed paperwork as Power of Attorney for the deceased to sell the parcel of real estate that was the subject of a gift in the deceased’s Will.… Read More