Will Estates and Probate FAQ

Print

Left out of a Will?

After the passing of a loved one, you may find yourself left out of the Will but that may not be the end of your Claim upon that Estate. There are many circumstances where you may be left out of a Will such as undue influence, fraud, forgery, or lacking in mental capacity.

Simply being left out of a will does not put an end to your claim, depending on the circumstances, we may be able to assist you.

 

How do I get a copy of a Will?

The testator is the person leaving behind a will when they die.

Before the testator dies the will is a private document, without the consent of the testator there are no general entitlements for anyone to inspect or request a copy of the will. It is generally only limited to the testator consenting to you viewing the will. In NSW the only person entitled as of right to view the will of a living incapable person is the NSW Trustee and Guardian.

After the death of the testator pursuant to section 54 of the Succession Act 2006 (NSW) some of the following categories of people are entitled to inspect the Will:

  • Any person named or referred to in the will, whether you are a beneficiary or not;
  • Any person named or referred to in an earlier will as a beneficiary of the deceased person;
  • The surviving spouse, de facto partner or children of the deceased person;
  • A parent or guardian of the deceased person;
  • Any person entitled to a share of the estate of the deceased person if the deceased person had died without a will;
  • Any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died without a will;

 

Challenging a Will?

In NSW, there are many grounds upon which you may challenge a Will. These grounds include:

  • Family provision;
  • Trusts;
  • Contracts;
  • Undue influence;
  • Fraud;
  • Forgery; and
  • Lack of testamentary mental capacity.

All of the above are grounds to challenge a Will.

If you feel that the Testator (will maker) did not sufficiently provide for you, or if the group Will is grossly unfair, or there are dependents that are partially or fully financially dependent upon the Deceased, there may be grounds to challenge that will.

 

Keeping your Will up to date

Also remember an out-of-date Will is probably worse than no Will at all for the complications it can create. Marriage, births, divorce, deaths or asset change could all demand a change to the Will therefore it should be reviewed in light of any such changes.

 

What is a ‘Beneficiary’?

A Beneficiary is, in a broad sense, a natural person or other legal entity that stands to derive a benefit upon certain events. In this case, once a Testator (Will maker) leaves any assets to a person/people or entity, they become the Beneficiary. The Beneficiary does not own any of the intended assets to be passed to them until the Testator passes away.

What to do when someone dies

Write a document detailing such things as funeral directors to be used, whether you want burial and where, or cremation and disposal of ashes and your thoughts on flowers, donations, music etc. Also include body part donations if you wish. Remember as separate documents they are not part of the Will and may be varied by relatives at the time.


What is ‘probate’?

Probate is a certificate from the Probate Office stating that the Executor has proved the Will to be the last one made by you and that he/she is the Executor named. The Probate Office will provide a certificate (Grant of Probate) that recognises the Executor is the authorised person to proceed to distribute the assets.

Probate is not required if all assets are held in joint tenancies as ownership automatically passes to the other party. It is usually also not required if the estate is small or uncomplicated.

Probate is required as authorisation for bank or asset holders to release assets or transfer ownership as required by the Will.

An Executor can apply for Probate through a solicitor or Public Trustee or by completing the necessary summons himself/herself and submitting it with a copy of the Will, death certificate, list of assets and liabilities and a copy of a newspaper advertisement that must be placed 14 days earlier.

A Grant of Probate can be made only when there is a Will available. In the case of a person dying without a Will (intestate) the Courts step in and distribute the estate to the next of kin according to the intestacy rules.

A Probate order in this case is replaced by Letters of Administration that the next of kin apply to the courts for and in a way similar to a Probate order. Self-help kits are available to deal with probate or Letters of Administration. Probate Offices are in each state.


What is an ‘executor’?

Your Executor is appointed by you, the Will maker, to carry out your wishes as expressed in the Will and dispose of the property accordingly.

You should appoint someone who is in good health and likely to live for many years to come and whom you can trust, making sure they are happy to act as Executor when the time comes.


What does an executor do?

Generally speaking, the role of an Executor is common sense and where a complicated estate is involved which may include obtaining of Probate, the Executor can seek help from a solicitor, the Public Trustee or a Trustee Company. An Executor's duties may require him/her to liaise with a funeral director to arrange a death certificate, make the funeral arrangements and arrange disposal of the body of the deceased if the Will specifically requests this.

An Executor will be required to locate and identify property belonging to the deceased such as bank accounts, land and property, cars, investments or outstanding debts. The Willmaker can make the job of the Executor(s) easier by completing (and keeping up-to-date) an Assets and Liabilities Inventory.

A death certificate will be needed to claim insurance, superannuation, bank drawings, funeral expenses and to apply for Probate or Letters of Administration.

Once Probate is granted the Executor needs to clear all debts including funeral expenses, taxes or loans and distribute the assets and specific items to the Beneficiaries as required. An Executor needs to keep an accurate record of all transactions and disposals to avoid any disputes later.


Locating a Will

A thorough search of the home of the Deceased will always be a good place to start. If you are unable to locate that Will, go through the Deceased’s bills to see if there is a legal bill that can be found, that will take you to lawyers acting for the Deceased, and they may have a copy of the most recent Will. Searching through the Deceased’s address books containing phone numbers of lawyers is also a good place to start.

The next step may involve asking family, friends, neighbours, or any person that may have any knowledge of where the missing Will may be.

Advertisements in newspapers or law journals may potentially yield information about a missing Will.

You may have located a photocopy of a Will, if the original cannot be found (because it has been misplaced or destroyed due to an accident), and this copy has been validly authorised, it may be considered sufficiently valid, however, this may not always be the case.

 

What is Intestacy?

Dying without a Will is known as dying intestate. The law will then dictate how your property is to be divided among your relatives (which may be contrary to your wishes) and any legal or Court costs will be paid from your estate. If a person dies without making a Will, all property and monies are disposed of according to the "rules of intestacy".

The basic principle is that the estate is distributed to the next of kin. There is a strict order as to who gets the estate. If no-one falls in the first class, the whole estate passes to the next class and so on until someone qualifies to receive the estate. Once there is a person qualifying in a particular class, the whole estate passes to that class, and no classes lower in the order receive any of the estate.

 

How does Intestacy work?

The order for the distributing of property is as follows:

  • Spouse (or de facto spouse) and no children. The whole of the estate passes to the surviving spouse.
  • Spouse (or de facto spouse) and children, then:
    • If the deceased's estate does not exceed $150,000 the surviving spouse receives the whole estate.
    • If the deceased's estate exceeds $150,000,
      • the spouse receives the first $150,000 as well as the household effects (not including the deceased's personal effects) and one-half of the remaining estate. The children of the deceased take the other half of the remaining estate; OR
      • if there is a matrimonial home, the surviving spouse may elect to take ownership in full or partial satisfaction of his or her interest. This is possible even if it means the children receive nothing.
  • No surviving spouse or de facto spouse, but there are children. The children get equal shares of the estate. If a child of the deceased died before the deceased and had children, those grandchildren will take the child's share.
  • No spouse and no children. The parents get equal shares of the estate.
  • No spouse, children or parents, the members of one of the following classes receive the whole estate in this order: brothers and sisters; half brothers and half sisters; grandparents; uncles and aunts; and half-blood uncles and aunts.
  • If no one qualifies the estate passes to the Crown (ie the NSW State Government). Dependants, cousins or close friends can make an application to share in the estate. Applications are considered on merit and decisions are purely discretionary.

 

What is a Family Provisions Claim (FPA) ?

A Family Provisions Claim is an application to the Supreme Court to seek provisions from the Estate of a Deceased person. If the Will was fairly and evenly distributed amongst everyone who could be eligible, then the likely success of a Family Provisions Claim is not great.

Eligible people that can claim under the Family Provisions Claim may include the following:

  • A spouse;
  • A de facto spouse;
  • A child;
  • A grandchild; and
  • An ex-spouse or any person wholly or partly dependant on the Deceased at the time of death, or if they are a member of the Deceased’s household at any time.

A Family Provisions Claim must be made within 12 months from the date of death, and in some circumstances (with Leave of the Court), it may be extended. Under this claim you would need to show to the Court that you depended on the Deceased and that you can show a need for a share of the Estate, compared to the claims of other relatives or beneficiaries.

A Defence to Family Provisions Claims is disentitling conduct. Disentitling conduct is where one person has done something towards the Testator that automatically disentitles them from making any claims, such as assault.


We are conveniently located in Parramatta and have experienced solicitors to advise you in relation to Wills, Estates, Family Provisions Claims and Probate matters.