Wills and Probate
Wills and probate is the area of law in which we help you plan what happens to your assets, property and obligations after your death.
No one likes to think about what will happen when they – or their loved ones – are no longer around, but if you don’t plan ahead, life could become very difficult for those who are left behind.
The easiest way to look after your affairs in these circumstances is to make a Will. In this way, you can ensure that the assets you have built up over your life are left precisely as you wish them to be.
What is a Will?
A Will is a legal document that covers, amongst other things
- who is to deal with your affairs once you have passed on
- how you wish your assets to be distributed after your death
- the care of your infant children
- any wishes you may have for your funeral.
Who needs a Will?
All adults with appropriate decision making ability and who care about who manages their affairs and who receives their property after they die should make a Will.
Making a Will is not something you should leave until you are old. However old you are, you need a Will to protect the interests of your loved ones and ensure your assets go to the people you choose.
The Capacity to Make a Will
Except in very limited circumstances, you need to be 18 or over to make a Will.
You must also have the necessary mental capacity. This means that you must be able to understand:
- that you are making a Will
- the effects of that Will
- the extent of your property that you should deal with
- who is reasonably entitled to benefit under your Will
- who may claim against your estate if they are not beneficiaries of your estate.
It is also important that the person making the Will is not ‘unduly influenced’ by others. Our Capacity and Capability Clinic can help with Decision Making Ability evaluation and implementing Supported Decision Making to help resolve concerns about the defensibility and enforceability of a Will.
Remember, to express a preference is NOT the same as making a decision. We need to understand why you want to make your Will in any particular way.
The resources in the ‘What we need you to tell us’ section of our Download Page can help you prepare for the Will-making process.
What happens if you don’t have a Will?
If you die without a Will, you are deemed to have died ‘intestate’ have no say about who your estate is distributed to after your death.
Certain rules apply as to who can administer an intestate estate. That person is called an administrator and the authority that they obtain from the Supreme Court to deal with the estate is called letters of administration.
The law also provides a set of rules that govern how a person’s assets are distributed when they die without a Will. Changing the effect of these rules may be difficult, costly and, in the end, impossible to do.
Without a Will in place, you could cause your family hardship, worry and even costly legal bills if there is any confusion or disagreement after your death.
Reviewing Your Will
When was the last time you looked at your Will? Once you have written a Will, it is important to review it regularly and make sure it still reflects your wishes, especially after life-changing events such as marriage, divorce and the birth of children or grandchildren.
We are happy to help you conduct a review of your Will and to make any changes to your estate and succession plan that may be required.
When there is a disagreement about a Will, we can help find a pathway forward. We have deep expertise in working collaboratively with a person, their family and supporters to deliver the client’s desired outcomes for wealth conservation, estate governance and succession. When necessary we support our clients with our conflict management, alternative dispute resolution and litigation services.
Probate is the name for the legal process of dealing with the Estate of someone who has died. It is the responsibility of the people named in the Will as the executors. If there is no Will, the person is deemed to have died ‘intestate’ (ie without a Will) and we can help you work out what to do next. Someone will become the administrator of the Estate and default legal rules will be applied to the estate, NOT the terms of a person’s Will.
When someone dies, what should you do?
At this most difficult time, we can help you plan what you need to do. This will include:
- Register the death, obtain copies of the death certificate and register the death certificate with the various financial institutions
- Locate the person’s Will, check if it contains any funeral wishes and assist the Executors or Administrator of the Estate as needed
- Collect personal documents belonging to the deceased and make a list of the deceased’s assets and liabilities.
- Help verify the assets and liabilities as at the date of death and establish who has the authority to carry out the funeral and Estate administration.
- Working out if Court authority is needed to administer the Estate
- Working out how the tax liabilities of a person are to be resolved following their death.
- Working out if there are any special circumstances (like overseas assets and connections) that can affect the Estate.
The grant of probate or letters of administration
After the funeral, you will need to turn your attention to the Estate that the deceased person has left behind. You may need to apply for a grant of representation (grant of probate, if there is a valid Will, or letters of administration, if there isn’t).
The executors or administrators (the personal representatives) may need to make an application to the Supreme Court. We can help you make the application and complete the forms that are required. One of our main areas of expertise is in advising on the administration of complex Estates.
How long can probate take?
Probate can be a lengthy and complex process, with long tax forms to complete. The whole process can take up to 12 months. It is often much more straightforward and less stressful to get a lawyer to do this for you.
The Law Society of NSW has provided a guide for solicitors doing the work of an Executor. This is a useful guide to the work of an executor and the usual advisers that help in this work.
Our Wills and Probate Specialists
Michael is a mentor and general counsel to businesses and families. He is the co-author of the book “Estate Planning: A Practical Guide for Estate and Financial Services Professionals”, published by LexisNexis and now in its fifth edition.
Resolving complex decisions
Protect your loved ones
Resolve family conflict
Peace of mind
Make an appointment
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