Wills, Probate, Estate Planning & Family Provision Act Claims

We are experienced Wills and estate planning lawyers and can assist with all your estate planning, estate administration and estate dispute needs. We offer simple, cost-effective ways to make a Will in Kincumber and the Gosford region. We can help with:

• Preparing and updating your Will
• Estate planning
• Powers of attorney and appointments of enduring guardian
• Applying for probate or letters of administration
• Assisting with estate administration
• Family provision claims
• Estate disputes and Supreme Court estate litigation
• Retirement villages and aged care advice

Making an effective Will and estate plan

A Will is a legal document directing how you would like your assets dealt with after you die. If a Will is valid, the person you have nominated as your executor will collect and distribute your assets in accordance with your wishes.

For a Will to be valid, it must comply with certain legal requirements. For example, if the Will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die. A Will should also be very clear about your directions so there is no uncertainty when you are no longer around to explain.

Making a Will is an excellent step towards planning your estate. There are however some additional matters you may need to consider, such as:

• Planning for the unforeseen – ensuring powers of attorney and appointments of enduring guardian are in place so your legal, financial and health affairs (as relevant) may be dealt with appropriately if you become ill or incapacitated.
• Protecting vulnerable beneficiaries – creating trusts to safeguard assets from third party creditors or to protect beneficiaries who may be at risk of managing their inheritance whether through incapacity, disability, or dependency.
• Succession planning – ensuring arrangements are in place for business and company interests, whether those interests are to be wound up or handed down through generations.
• Reviewing your Will when your circumstances change – a change in your relationship status, the birth/adoption of a child, receiving a windfall or inheritance, acquiring business interests, if an appointed executor or beneficiary dies, or you have health issues.

Involving a lawyer in your estate planning can ensure that your Will and other documents are prepared correctly, and your affairs structured to maximise your wealth and protect your family. We will consider your individual and financial circumstances, as well as your family structure to ensure your testamentary wishes are correctly set out and to minimise the potential for disputes to arise after you die.

Probate

Probate is the Supreme Court’s recognition of a Will’s validity and permission for the executors named in the Will to carry out their duties in relation to the estate. You will likely need a grant of probate to deal with the assets of an estate, such as selling property and obtaining bank funds. The executor of the estate must follow the applicable processes to apply for probate and the application and supporting documentation is filed with the Supreme Court.

We can help you apply for probate in instances where there is a valid Will and you have been nominated as executor. We can also assist with identifying and gathering assets and distributing the estate in accordance with the Will.

In some cases, a grant of probate may not be needed, particularly for small estates, and we can advise you if obtaining probate is necessary or recommended in your circumstances.

Dying without a Will – letters of administration

Dying without a Will is referred to as dying ‘intestate’. This not only leaves your family unclear as to your final wishes but can make the administration of your estate more complex and time consuming. Most importantly, it means you do not have the final say about who should receive your hard-earned assets. This is because the distribution of an intestate estate follows a prescribed formula set out in the relevant jurisdictional legislation.

The Supreme Court can appoint an administrator to distribute the estate under the Wills, Probate and Administration Act 1898. The administrator will typically be the person with the greatest interest in the estate, such as a spouse, partner or child of the deceased. We can assist you with applying to the Supreme Court for letters of administration so you can move forward with distributing and finalising the estate.

Family provision claims

If you expected to be a beneficiary of a Will but have not been provided for, you may be eligible to make a claim against the estate under the Family Provision Act 1982.

An eligible person is defined differently in various jurisdictions, but generally includes a spouse, former spouse, de facto partner, child of the deceased, or certain individuals who were in a close personal relationship with the deceased or dependent on the deceased at the time of his or her death.

We can review your circumstances to determine whether you are eligible to make a family provision claim. Strict timeframes apply and, to be successful, you must show that the deceased person failed to make adequate provision for your proper maintenance, education, and advancement in life. A range of factors must be considered, and many claims can be settled without going to court.

An executor may need to defend a family provision claim and will have a primary duty to uphold the provisions of a Will, however, must also ensure that estate assets are not depleted through unnecessary litigation. If you are an executor of an estate facing a family provision claim, we recommend you obtain legal advice promptly.

If you need any assistance, contact one of our lawyers at [email protected] or call (02) 4369 6975 for expert legal advice.