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.… Read More
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:
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- You may appoint more than one person.
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.… Read More
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.… Read More
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:
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- 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.
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.… Read More
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.… Read More
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.… Read More
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.… Read More
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.… Read More