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Sydney NSW 2000
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Penrith NSW 2750
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At Sydney criminal and Family Lawyers we offer a full range of wills and estates services
Estate planning: General Considerations
Only a legal adviser with a detailed knowledge of a testator's ( the person making the Will) affairs, derived from either a long association with the client or frankness on the testator's part, can draw a proper Will.
The need to keep your Will updated
Because of changing family and economic conditions and changes in taxation every person who makes a Will should update it every few years; say every two to three years. We need to obtain sufficient information form a person proposing to make a new Will in order to be in a position for us to assess the overall need for our clients to plan their estates. Any estate plan should include the following:
The Will needs to be approached as only one part of estate planning aimed at preserving the family fortune.
Assisting people with deceased estates
Contesting wills and acting in disputed wills claims
Powers of attorney and Enduring Powers of Attorney
Executor of a deceased estate?
If you have been named as an executor in someone’s will, it means the deceased wanted you to administer his or her estate, perhaps in conjunction with another person.
There can be any number of executors named in a will, though one or two is usually considered sufficient. Your fellow executor could, for instance, be the Solicitor who drew up the will; in this case the Solicitor may charge for services performed in connection with the administration of the deceased’s estate, provided the will says so.
If you are the sole executor, you will probably need the assistance of a Solicitor to deal with the duties and obligations of administration.
Will I be paid for being an executor?
You are entitled to apply to the Supreme Court for commission for your work as executor. But if you are named also as a beneficiary in the will the bequest will usually be presumed to be payment for your administration unless there are circumstances or something in the will to overturn that presumption.
What if I don't want to be an executor?
Even if you earlier agreed to be one, you can renounce the executorship by signing a ‘renunciation’. The Solicitor for the estate will file the necessary documentation with the Probate Registry of the Supreme Court.
What are an executor’s responsibilities?
In general terms, an executor's duty is to take charge of the deceased's assets and property, see that the funeral and administration expenses as well as debts and taxes are paid and finally to distribute the assets to the beneficiaries in accordance with the will.
You will have to begin by finding out and making a list of everything the deceased owned or was entitled to. The list could include a home, car, money, bank or building society accounts, furniture, household appliances, jewellery, shares and other investments, insurance policies, superannuation, and holiday pay from work. In addition, if the estate is to be divided between a number of beneficiaries, the assets may have to be valued.
Next you will have to apply to the Probate Registry of the Supreme Court for a grant of probate. Probate is an order of the court saying that the will is valid and that the executor has the right to administer the estate.
When applying for probate you will need to complete a number of forms which are prepared by your Solicitor or are available in blank form from a law stationer. You will also need documentary evidence of death, proof of proper signing and attestation of the will, and details of assets and liabilities.
What if the estate is small?
Banks and building societies have varying rules which allow access to the deceased's funds without a grant of probate if the estate is very small.
Enquiry should be made of the financial institution concerned to ascertain at what level it will insist on a grant of probate before the executor can deal with the funds.
Where the estate is small, that is less than $50,000, no court fees are payable if an application for probate is necessary.
What do I do after probate is granted?
Once probate has been granted, the executor must collect the deceased's assets and take steps to pay the funeral and administration expenses and any debts or taxes – including income tax – the deceased owed.
In view of possible liability for capital gains tax, it is important to find out the date and cost of acquisition of the deceased's assets.
Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. After funeral expenses are paid, the executor is entitled to payment of any actual expenses incurred relating to the administration of the estate before other debts are paid.
Once debts have been paid, assets are either distributed according to the terms in the will or they are sold so that money can be divided among the beneficiaries.
As executor you might have to contact financial organisations and companies in which the deceased had money invested in order to realise those assets, and become involved in selling various pieces of the deceased's belongings such as jewellery, a boat or car.
A bank account may need to be opened, in the name of the estate, into which all funds belonging or due to the estate must be deposited and from which debts must be paid.
When and how are the assets distributed?
When all assets have been identified and, if necessary, sold to raise cash, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries.
The executor may distribute the assets if at least six months has passed since the date of the deceased's death and a notice has been published requiring anybody with a claim against the estate to provide particulars of the claim with a specified period – not less than 30 days.
The executor must prepare a distribution report and statement for the beneficiaries – given to them when they receive their share of the estate – showing what the assets were, how much money resulted from any sale of assets and what expenses and debts were paid from the proceeds.
Where an executor is applying to the court for commission for his/her administration, detailed accounts have to be filed at the same time with the Probate Registry and all payments and receipts by the executor properly approved.
What if there is no will?
There are rules laid down by law about how assets are to be distributed when there is no will. Briefly, a surviving spouse (this includes a domestic partner) receives the whole estate if there are no children or the children are those of the spouse. However, if there are children of another relationship, for example children of an ex-spouse or ex-domestic partner, the estate is divided according to a formula between the spouse and all children.
If there is no legal spouse or domestic partner or direct descendants, the deceased's parents receive the whole estate, otherwise it goes to brothers and sisters or other relatives up to and including first cousins. If there are no relatives entitled, the estate goes to the State Government.
How will a we help me?
As your solicitor we:
Your Role as an Executor
The role of executor is an important one. By being named as the executor the deceased has put his or her trust in you to carry out a number of tasks which you have ultimate control.
The Court has held that broadly speaking the duties of the executor are as follows:
It is the duty of the executor to bury or cremate the deceased as soon as is practicable following their death.
It is the duty of the executor to obtain Probate of the last Will and Testament of the deceased
Call in the Estate
Section 44 of the Probate and Administration Act provides that upon the Grant of Probate all assets of the deceased (both real estate and personal property) vest in the executor.
Preserve the Estate from Waste
An executor must ensure that the assets of the estate are not wasted due to any action or inaction of the executor.
What is Probate?
Probate is the legal process that proves the validity of a Will.
Before Probate Has Been Granted
If a person dies in New South Wales and has left behind assets, all of these assets (including real estate and personal property) are deemed to immediately be vested in the NSW Trustee, in accordance with section 61 of the Probate and Administration Act 1898. In order for the Executor or Administrator to take control of these assets and begin distributing them to the beneficiaries, the Executor must apply to the Supreme Court of NSW for a 'Grant of Probate' on the deceased's last Will.
The Grant of Probate
Probate is granted by the court. This means the court is satisfied that the Will is valid. Once probate has been granted the person who has been named in the Will as it's Executor may begin finalizing the deceased's affairs and administer the Estate by collecting funds, selling assets and distributing the Estate to the beneficiaries in accordance with the wishes outlined by the deceased in the Will. At this point, full control of the assets will have shifted from the NSW.
Trustee to the Executor
Only once the Executor has received a Grant of Probate will the asset holders (banks, share registry, department of lands, etc) release and transfer the deceased's assets into the Executor's name.
Do I really need Probate?
Not necessarily. There is no statutory requirement that a grant of Probate be obtained in every case. However, if the deceased has assets (e.g. bank accounts, superannuation funds, insurance) and the Executor is going to seek a release of those assets, that are held by their respective holders, then a grant of Probate will be required before the asset holders release or transfer the assets. This especially applies to any real estate held solely in the name of the deceased person, whereby a grant of Probate is always required. Real estate that is owned by the deceased and another person (in NSW) is not such an issue, because the real estate will automatically pass on to the surviving tenant.
Because almost every contested or challenged Will case involves dealing with asset holders, a grant of Probate is recommended.
Can an Executor outside NSW apply for a Grant of Probate?
Yes, however in doing so he or she must provide the court with a valid address for the service of documents that is within New South Wales.
Can an Administrator outside NSW apply for a Grant of Probate?
No. In order for the court to grant Letters of Administration the Administrator must actually reside within New South Wales.
What if the Executor isn't capable of applying for Probate?
There have been cases in which the Executor of a Will isn't able to apply for a Grant of Probate. This could occur for a number of reasons, for example the Executor might be suffering from ill health and be physically and/or mentally incapable of managing the Probate process.
If this occurs, and the Executor is not the sole beneficiary, then one of the other beneficiaries typically applies for 'Administration With Will Annexed'. This simply means that someone has stepped in as an Administrator of the Will in place of an Executor. This can also occur in situations where a Will fails to nominate an Executor. We are sometimes known to refer to this process as 'Administrator Cum Testamento Annexo' or CTA.
What documents will I need to apply for a Grant of Probate?
All documents needed to apply for a Grant of Probate can be downloaded from the Internet or sourced by a Probate Lawyer handling your claim. These documents can also be purchased from a number of legal stationary suppliers.
It is very important to ensure all documents are completed properly and that all the relevant information is included. If there are any omissions or errors it could delay the entire process. To avoid any delays it is recommended all claimants seek advice and support from our Probate team.
Who gets the Superannuation and Life Insurance?
A person is not the legal owner of their superannuation. Therefore, the funds that a deceased person has in their superannuation are not distributed according to that person’s Will.
While the deceased person was alive they might have made a ‘death benefit nomination’. This nomination directs the superannuation trustee how to pay out the money in their super. If, during their life, the deceased person did not nominate a person to receive their super funds the trustee of the super fund will make that decision.