Wills and Estate Planning

What makes a Will valid?

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A will is a legal document that sets out your wishes for what you want to happen with your estate assets after you have passed away. Ensuring that your will is well structured, clear and up to date is very important, as it will be more likely that your assets will go to who you want them to. Most people have some idea about what they would like to happen with their estate once they have passed. Whether you decide to leave your assets to your children or your favourite charity, it is important that you ensure the will you make is valid so that who you want to benefit will actually happen.

 

Why Should I Make A Will?

We understand that making a will can be a very difficult document for a person to create. However, some reasons it is a good idea to make a will include:

·       To express your wishes and intention for what you want to happen with your estate assets once you have passed;

·       To provide adequately for the people that you care about, especially when considering blended families or other people who you wish to inherit from you;

·       To make it less likely for a dispute to arise; and

·       To avoid the delay and cost of administering an estate when passing without a valid will in place (also known as dying intestate).

 

Legal Requirements for the Will

In New South Wales, for a will to be considered valid it must be:

·       In writing;

·       Signed by the will maker on every page of the will (or by a person the will maker has directed to sign on their behalf in their presence if they are physically unable to sign it themselves); and

·       Witnessed by at least two people at the same time the will maker signs the document. The witnesses must also sign each page of the will to confirm that they were present and witnessed it.

However, there are also requirements regarding the two witnesses. Unless certain circumstances apply, the witnesses cannot be listed as a beneficiary under the will and they cannot be a person who is unable to see.

 

Capacity and Intention

If you are a person who wishes to make a new will, you must have the legal capacity to do so. What this means is that you must have the ability to make decisions for yourself and you must be able to demonstrate that you understand the nature and consequences of your decisions.

You must also be over 18 years of age or have approval from the Court to make a will if you are a minor.

When it comes to signing the will, it must also be clear that you know what you are signing, that it was your intention to make a will and that you were not coerced, influenced or manipulated when you were making your will to have your estate divided in a certain way.

 

Drafting Issues

Whilst it may seem quite easy to make a valid will without seeing a lawyer who practices in the area, certain elements of your will need to be written in such a way that they reflect your intentions.

If a will is not drafted correctly, what you intended to happen or who you intend to benefit may not happen at all. Speaking to a professional will also give you the benefit of experience and ensure it is drafted correctly and allow you to receive a will that is tailored to reflect your individual needs and circumstances.

For further information contact:


Kaisha Gambell
Senior Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What do you do when a property owner dies in NSW?

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When someone passes away, property ownership is generally the last thing on your mind. However, once you have had some time to process the loss, dealing with the property of the deceased person is extremely important. Understanding how the property is owned and what that means will determine how the legal title of the property is transferred and who it goes to.

 

Types of Property Ownership

In New South Wales, there are three ways that people can own property:

  •  Sole Ownership – When the Title of the property is held in the deceased person’s name only. No one has the automatic right to the property and the asset will be handled as part of the deceased person’s Estate.

  • Joint Tenants – This is the most common way that married, or de facto couples own property. Whilst each person holds an individual interest in the property, when one person on the Title passes away the legal concept of “survivorship” takes place. That is, the interest of the deceased person will automatically pass to the other person listed as the joint tenant on the Title as that other person has “survived” the deceased person. In this case, the property does not form part of the deceased person’s Estate.

  • Tenants in Common – This is when two or more people are co-owners of the same property. All of the people who own the property will be listed on the Title. The co-owners can all hold an equal share in the property (known as Tenants in Common in Equal Shares) or they can each own an unequal share, for example, 30/70 or 40/60. The co-ownership will depend on the arrangements made when the property was purchased.
    When a person on the Title of a property owned as Tenants in Common passes away, their individual interest or share in the property does not automatically pass to the other surviving owners. Instead, the deceased person’s share in the house will form part of their Estate and be distributed in accordance with what that person had nominated in their will, or if they did not leave a will, by the laws of intestacy.

So, how do I transfer the property?

As there are different ways that people can own property, it automatically follows that there are different ways to transfer the property into the new owner’s name. Property is transferred as follows:

 

Joint Tenants

Because the concept of survivorship applies to property that is owned this way, it is a much simpler process than the others. Even though the property automatically passes to the survivors, the surviving owner is still required to complete forms and provide certain documents to the land titles office to officially remove the deceased person’s name from the Title.

In New South Wales, the surviving owner will need to prepare and register a document called a “Notice of Death” and provide the land titles office with the original Certificate of Title so that they can remove the name of the deceased owner and return a new Certificate of Title to the surviving owner.

If there is a mortgage over the property, the mortgaging bank may hold the original Certificate of Title and the surviving owner will need to get their consent to register the Notice of Death. 

 

Sole Ownership or Tenants in Common

As the right of survivorship does not apply to property owned by a person in their sole name or as Tenants in Common with other co-owners. Instead, the property forms part of the deceased person’s estate, and how the property is transferred will depend on whether the deceased person had a valid will.

Where there is a Will:

When a deceased person has left a valid will, there will be an executor appointed to handle the estate and transfer the property of the estate. However, the executor will need to apply for a Grant of Probate from the Supreme Court of New South Wales before they are legally permitted to transfer or sell the property. This can be a lengthy process and it always helps if the executor speaks to a legal professional so that they are able to meet the Court’s requirements.

Once Probate has been granted, the executor will be able to arrange for the property to be transferred into the names of the beneficiaries in the will or sold and the proceeds of sale divided between the beneficiaries of the will.

Where there is no Will:

In these situations, the deceased person is considered to have died intestate. Without a valid will, there is also no appointed executor. In New South Wales there is a predetermined hierarchy of people in the deceased persons family who will benefit from their estate. The person who has the greatest interest in the estate will then be required to make an application to the Supreme Court for a Grant of Letters of Administration and become the “Administrator” for the estate. Once the Letters of Administration has been granted, the Administrator has the legal authority to transfer or sell the property, however the beneficiaries of the property or the proceeds of sale of the property will depend on the rules of intestacy under the Succession Act (NSW) 2006.  

 

The legal requirements and time frames for transferring property after someone has passed away can differ greatly. Speaking to a legal professional may help you to understand the process and handle the transfer of the property with as few issues as possible.

For further information contact:


Kaisha Gambell
Senior Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Burial Plots: Grave issues you need to be aware of

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Did you know on 25th June 2018, the NSW Government introduced regulations to the Cemeteries and Crematoria Act 2013, to enable cemeteries and crematoriums throughout NSW to offer “renewable internment rights” to only lease burial plots? The leases are available for 25 years, after which time the family has an option to renew the lease or risk having the remains of their loved one removed from the burial site.

 

Background

In NSW, the land used for a burial site is not owned by the deceased person or their family. Rather, the holder of the burial site purchases an “internment right” for Government or privately-owned land, and then has the legal right to bury the remains of a deceased person in that place. An internment right can be owned jointly by two or more people and is capable of being left to a beneficiary under a will. However according to Government modelling, it is estimated that the cemeteries in greater Sydney would be completely full within the next 30 years if action isn’t taken to address the shortage of burial space in NSW.

 

In a bid to deal with the rapid depletion of burial space available, the changes allow cemeteries (the majority of which are owned by private entities) the option to offer a “renewable internment right” for a minimum of 25 years and a maximum of 99 years on burial pots. After the initial 25 years, the family of the deceased person can pay a fee to the cemetery to renew the right for a further 5 years at a time. The Regulation imposes certain conditions on the cemetery operators to notify the family members of the upcoming renewal by letter, telephone, email, Facebook and Twitter, as well as circulating details in a local newspaper. However, if the family cannot be contacted and the renewal fee is unpaid at the end of the lease term, the remains of those buried in the “renewable” plots will be exhumed and re-interred at a greater depth or placed in an “ossuary house”.

 

Looking to the future

The traditional internment right where the remains of a person are left undisturbed (now known as a “perpetual internment right”) can still be purchased, but the speculation is that these burial sites will be much more expensive than the “rentable” alternative. The enforcement of this Regulation will, according to Mick Veitch, opposition member of the NSW Legislative Council, lead to two classes of burials: ‘permanent monuments for those who can afford it and those who can’t afford it will be forced to see their loved one dug up’.

 

Whilst renewable internment is not compulsory, the fear of the general public is that many cemeteries will seek to reduce, if not completely eliminate, the number of perpetual internment plots available to increase their income. Public responses to the new Regulation suggest that Australian’s are mostly concerned with the State Government’s failure to invest in space for new cemeteries and are outraged at the thought of being put through the emotional distress that is continuing to come up with the funds to keep their loved ones in what they thought to be their final resting place. It should be noted however that at this time, the Regulation does not apply retrospectively, and all existing burial sites will continue to remain exactly as they were prior to the law change.

 

The Legislative Council Regulation Committee is currently carrying out an inquiry into the Cemeteries and Crematoria Amendment Regulation 2018 and has recently taken submissions from stakeholders and interested members of the public. The Committee will examine the impact of the Regulation and its effect on traditional internment rights, renewable internment rights and the ongoing responsibilities of cemetery operators in managing the cemetery. The Committee met on 21 September 2018 and will deliver its final report by the end of October 2018.

For further information contact:

Justina Hanna
Paralegal
justina@couttslegal.com.au

Kaisha Gambell
Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

How getting married, separated or divorced affects your will.

Do you know how getting married, separated or divorced affects your will?

Whether you are getting married for the first time or you’ve recently separated from a previous partner, it is important that you know how these life events may impact your will.

 

Getting Married

In New South Wales, the act of becoming legally married to someone automatically revokes any previous will that you have made. If you pass away without making a new will after the date of your marriage, you will pass away “intestate”, which means that you do not have a valid will at the time of your death and your estate will be given to your relatives in accordance with the law.

 

Under the current intestacy laws of New South Wales, your spouse is the first person entitled to your estate and in most circumstances, your spouse will receive all or the vast majority of your estate.

 

Whilst this operation of the law may not be an issue for many first-time marriages, it may cause problems for people who have children from a previous relationship or other people who they are responsible to provide for.

 

There is an exception to this rule. Where your will is expressed to be made in contemplation of a marriage to someone, then your will is not automatically revoked upon your marriage to that person.

 

Recently Separated

Separation from your husband or wife does not have any impact on your will. If you have recently separated from your partner and you are currently in the one year waiting period to be able to get divorced, it is incredibly important that you update your will as soon as possible to reflect your new wishes!

 

If you pass away without updating your will after you’ve separated, your former husband or wife will inherit any property that was gifted to them in your previous will. If your previous will nominated your former husband or wife as your executor, they will be in control of the administration of your estate.

 

Formally (or finally…) Divorced

In New South Wales, the act of becoming formally divorced will also automatically revoke your will, but not in the same way that marriage does.

 

Divorce from your former husband or wife will only revoke those parts of your will that have appointed your former husband or wife as the executor or trustee of your will, or gifted them any of your assets – which is good news for you if you forget to update your will during the separation period.

 

However, becoming divorced does not revoke any appointment of your former spouse as the trustee of any property that has been left on trust for the beneficiaries in your will, such as your minor children. This means that, even though your former spouse will not receive any benefit from your estate, they may end up as the person responsible for managing the inheritance for your minor children until they become adults.

 

A similar exception exists for this rule, and where your will is expressed to be made in contemplation of your divorce then it will not be automatically revoked when your divorce becomes formal.

 

Life-changing events like getting married, separated or divorced can have just as much impact on your will and eventual distribution of your estate as they can have on your life. If you would like to know how your marriage, separation or divorce has affected your previous will, or if you would like to prepare a new will because you’ve experienced one of these events, you should contact our Wills & Estates team for further advice specific to your circumstances. 

For further information contact:

Kaisha Gambell
Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

Five things to consider when choosing your executor

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The person who you appoint as the executor of your will has many responsibilities once you have passed away. Some of these responsibilities include:

 

  • Arranging your funeral

  • Locating the beneficiaries in your will

  • Applying to the Court for the authority to administer your estate

  • Collecting and selling the assets of your estate

  • Paying any debts that you may have at the time of your death

  • Distributing your estate to the beneficiaries

  • Dealing with any conflicts or challenges to your will or estate

 

Therefore, your choice of executor is a very important decision. Before you rush to nominate your spouse or your children, it makes sense to carefully consider who would be the person (or persons) best suited for the job.

 

Here are five things you should consider when making your decision:

 

1.     Is the person trustworthy?

Your executor needs to be a person who you can trust to follow your instructions and carry out the wishes of your will. You should be comfortable knowing that the person you have chosen is an honest, trustworthy and ethical person.  

 

2.     Does the person live in New South Wales?

If you own property in New South Wales, your estate will need to be settled here. The Supreme Court of New South Wales will only give a grant of probate to an executor who is able to provide an address that is in New South Wales. Appointing an executor who is local will also make it easier for your executor to sign the required paperwork in person, keep an eye on your home and assets and eventually sell or transfer them to your beneficiaries. 

 

3.     Is the person organised?

Your executor becomes responsible for managing your entire estate when you pass away. Appointing a person who is good at paperwork and has experience in keeping proper accounts and records would be an ideal choice. Your executor should also be someone who will have the time to deal with your estate.

 

4.     Will the person be able to deal with any family conflict?

Sometimes the executor may need to deal with any conflict or disputes that could arise between your beneficiaries or if anyone makes a claim against your estate. Your executor should be someone who you know will be able to handle these difficult times, be able to act impartial and be able to make decisions in the best interests of the estate and your beneficiaries.

 

5.     Is the person happy to be your executor?

 Finally, you should make sure that the person you have in mind would be happy to accept the role. It is important for your executor to understand your wishes and what you expect of them as your executor. Otherwise, if your executor only finds out they’ve been appointed as your executor after your death, they may not be willing to accept the role and may apply to the Court to renounce that position.

 

If after you’ve considered these points and you do not feel as if you know anyone who could be your executor, you may like to consider appointing an independent professional executor such as a trustee company or your solicitor. Trustee companies and solicitors will be able to act as your executor in an efficient and impartial way, but do keep in mind that they will charge a fee to your estate for this service.  

 

If you would like further information on the responsibilities of an executor or you would like to set up a new will to appoint or change your executor, contact our Wills & Estates team for further advice!

 

For further information contact:

Kaisha Gambell
Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

The A-Z of Wills and Estates

Whether you are preparing a new will, or you are the executor for someone’s estate, the area of Wills and Estate Law can sometimes be a little overwhelming and confusing, and the ancient terminology that we use doesn’t make it any easier.

 

Historians have evidence that the area of estate planning dates back as early as Ancient Egypt some thirty years before Christ, whilst the modern day will as we know it now had its history in Roman Law[1]. It is because of this rich history that many of the legal words and terminology that we still use in Wills and Estates today are Latin legal terms and can be just as difficult to pronounce as they are to understand! 

 

We’ve created ‘The A to Z of Wills and Estates’ to give you the information you need to make sense of what your lawyer, judge or favourite law TV show are saying!

 

A is for…

 

Ademption – where a specific gift of property made to someone under their will fails because the property is no longer owned by the will-maker at the time of their death.

 

Administrator–the person who is appointed by the Court to manage the deceased estate of a person who passed away without a valid will.

 

Advanced Health Care Directive – a written document which records your values, beliefs and wishes in relation to the healthcare treatments you would like to receive or refuse in the event that you are seriously ill and unable to make those decisions for yourself.

 

Affidavit – a written statement that is sworn to be true by the person who signs it.

 

Asset – something that is owned by the deceased person such as land, a bank account or a motor vehicle.

 

Attorney - the person appointed to make legal, financial and property related decisions on your behalf under a Power of Attorney document.

 

B is for…

 

Beneficiary–the person or group of people who benefit from the will or estate of a deceased person.

 

Bequeath – to leave a gift of personal property to someone in a will.

 

Binding Death Benefit Nomination – a written direction to the trustee of your superannuation fund that nominates the person or persons who you wish to receive your superannuation death benefit once you have passed away.

 

C is for…

 

Codicil – a written document that modifies, changes or revokes parts of an earlier will.

 

D is for…

 

De Facto Relationship – a relationship between two people as a couple who were living together, but who were not married to one another.

 

Deed of Family Arrangement – a written agreement to record the distribution of a deceased estate where the distribution is not made in accordance with the will of the deceased person, usually where the beneficiaries wish to rearrange the distribution of the estate between themselves or to settle a claim against the estate outside of the Court.

 

Dependant – someone who depends on someone else for financial support. For superannuation purposes, this can be a spouse or a child.

 

E is for…

 

Enduring Guardian – the person appointed to make health, lifestyle and medical decisions on your behalf when you are no longer capable of making these decisions for yourself.

 

Estate – all the property owned by a person at the time of their death.

 

Executor/Executrix – a man or woman appointed by the will of a deceased person to administer the estate in accordance with the wishes of the will.

 

F is for…

 

Family Provision Claim – an application to the Supreme Court of New South Wales by a person who has been left out of a will seeking provision from the estate of the deceased person, i.e. the application to challenge the will of a deceased person.

 

G is for…

 

Grant – a formal document issued by the Supreme Court of New South Wales which gives the Executor or Administrator the authority to deal with the assets of the estate.

 

Guardian of Minors – the person appointed in your will to look after the interests of your minor children after you have passed away.

 

H is for…

 

Heir – a person who is legally entitled to the property of a deceased person, more commonly known as a beneficiary.

 

I is for…

 

Intestacy – when someone passes away without a valid will, they have died “intestate” and the assets of their estate will be divided amongst their relatives in accordance with the law.

 

J is for…

 

Joint Tenants – a form of property ownership between two or more people who share equal ownership and equal rights to the property.

 

K is for…

 

Kin – a person’s family and relations are that person’s next of kin.

 

L is for…

 

Legacy – a gift of personal property or money given to a beneficiary in a will.

 

Letters of Administration – the formal grant from the Supreme Court of New South Wales giving the administrator the authority to deal with the estate assets.

 

Liability – the debts that a deceased person owes at the time of their death.

 

Life Estate – the ownership of land for the duration of a person’s life, which may pass back to the original owner or another person upon their death.

 

M is for…

 

Maintenance – early distribution of the estate for a person’s maintenance to a beneficiary who was wholly dependent upon the deceased person and is entitled to all or part of the estate.

 

Mediation – an informal process for helping people who have a dispute to resolve the dispute without going to Court.

 

Minor – a child who has not yet reached the legal age of 18 years.

 

N is for…

 

Notice of Death – the document required to transfer property owned as joint tenants into the sole name of the surviving owner.

 

O is for…

 

Offer of Compromise – a written offer made from one party to another party stating the terms on which they would be prepared to settle the dispute between them without going to Court.

 

P is for…

 

Personal Property – the property of a deceased person except for land.

 

Per Stirpes – describes the process of distributing the estate of a deceased person equally between the children of the beneficiary who was entitled to a share of the estate. For example, where a parent is the beneficiary of a will but passes away, their share of the estate will go to their children instead.

 

Power of Attorney–a written document which gives another person the authority to make legal, financial and property related decisions on your behalf.

 

Probate – the formal grant from the Supreme Court of New South Wales giving the executor the authority to deal with the estate assets.

 

Q is for…

 

Qualified Witness – the persons who are authorised to witness a person sign a Power of Attorney or Enduring Guardian, being a lawyer, a registrar of the local court or an employee of the NSW Trustee and Guardian.

 

R is for…

 

Real Property – land that is owned by the deceased person.

 

Renouncing Probate – where an executor appointed by a person’s will does not wish to accept their appointment as the executor.

 

Residue – the balance of the estate assets after all of the debts, taxes, funeral expenses and specific gifts have been paid.

 

S is for…

 

Succession Act – the Succession Act 2006 (NSW) is one of the key pieces of law which governs the area of Wills and Estates.

 

T is for…

 

Testamentary Trust – a type of trust that you can create in your will for certain beneficiaries of your estate which will not come into effect until after you have passed away. 

 

Testator– a person who makes a will.

 

Trustee – the person who holds property for the benefit of the beneficiaries.

 

U is for…

 

Undue Influence – where a will can be deemed invalid because the will maker was coerced or influenced by another person to include something in their will that is against their true wishes.

 

V is for…

 

Valid Will – a will voluntarily made by a person who is over the age of 18 years, which has been signed and dated by the will maker in the presence of two witnesses.

 

W is for…

 

Will – a legal document used to record your wishes in relation to who receives your assets after you pass away.

 

Witness – the person who watches the will maker sign their will and then also signs the will to verify the authenticity of the signature.

 

X is for…

 

TestatriX– a female person who makes a will.

 

Y is for…

 

Yacht – a luxury asset that will form part of the deceased person’s personal property if they were so lucky to own one at the time of their death.

 

Z is for…

 

Zero Control – which is what you will have if you do not prepare your Will, Power of Attorney or Enduring Guardian in accordance with your wishes whilst you are still alive and have the mental capacity to do so.

 

[1] William D Rollison, History of Estate Planning, 37 Notre Dame L. Rev. 160 (1961).

Need to get your will organised? Talk to the team at Coutts Solicitors & Conveyancers today.

For further information contact:

Kaisha Gambell
Lawyer
kaisha@couttslegal.com.au
02 4647 7447

Three common myths about removing beneficiaries

Myth One

"I do not have a good relationship with someone and I need to make sure that I cut them out of my will."

The truth: Quite often we have clients ask us to make sure that their brother, sister, aunt, uncle or friend are cut out of their wills. However, this is not always necessary as only certain people are eligible to challenge your estate where they have been left without provision under your will. Eligible people will include your spouse whether married or de facto or a former spouse, your children, or any other third person who has been dependent on the you during your lifetime. For example, a grandchild who has lived with their grandparents throughout their life would be an eligible person to claim against their grandparents estate. Brothers, sisters, aunts, uncles, cousins, and most commonly, a son or daughter in law, are not a category of people eligible to challenge the estate and a will maker does not need to specifically exclude them from their will unless they have been dependent upon the will maker during their lives. 


Myth Two

"If I give someone $1 under my will, they will not be able to challenge my will."

The truth: This is probably the most common myth and nothing could be further from the truth. If the person who you are leaving $1.00 to is a person who is in one of the categories of eligible people mentioned in Myth One, they are most certainly able to challenge the estate. In this case, the person would need to prove to the court that they have been left without adequate provision for their current and future needs. In our experience, it is generally the "black sheep" of the family who has been cut out of the will. As unfair as this may seem, this may mean that the person is often better positioned than the beneficiaries who are named in the will, who have quite often been good and dutiful children. It is understandable that many people consider not even preparing a will if it is going to be challenged anyway. However, there are creative ways in which the person can structure their assets and estate to mitigate the possibility of a claim being made. 


Myth Three

"I will just transfer of all my assets before I die."

The truth: In this area of law there is a concept called 'Notional Estate'. When someone passes away, their actual estate is made up of all the assets that are in their name at the time of death. Notional estate exists to capture property that the deceased may have transferred to another person for less than full valuable consideration within the three years prior to their death, or earlier than three years if such property was transferred with the intention to prevent or curtail any claims on the estate after that person's death. For example, notional estate may exist where a parent has transferred their house to one of their children for $1, to the exclusion of their other children, so that the house is not considered part of the parent's estate at the time of their death. 


Need to get your will organised? Talk to the team at Coutts Solicitors & Conveyancers today.

Three common myths about executors & attorneys

Myth One

"I can only appoint one executor under my will."

The truth: There is technically no limit on how many executors someone can appoint under their will. However, from a practical perspective, naming too many executors can become quite problematic. The law in New South Wales states that a grant of probate cannot be made in favour of more than four executors at one time. If you decide to list more than four executors, the grant will only be given in favour of the first four that are named in the will. If those executors have all been appointed to act jointly, that means that all the executors must agree with one another, and each of the executors will be required to sign all of the estate documents. This may become a problem for the estate when the joint executors live quite far apart from one another, or in the event that the joint executors are not able to work together and agree on certain tasks, which may make it difficult to administer the estate in a timely and efficient manner. 


Myth Two

"My executor cannot be a beneficiary under my will."

The truth: Although a beneficiary cannot witness a will, there is no rule that says an executor cannot also be a beneficiary under your will. In some circumstances though, your executor may be prevented from applying for commission from the estate for carrying out their duties as the executor where they are also receiving a share of the estate, as this can be considered double dipping.


Myth Three

"I am someone's Power of Attorney, so I will automatically be their executor."

The truth: The Power of Attorney is only valid whilst the person giving the power is still alive. Once the person giving the power has passed away, the attorney is not permitted to deal with the estate assets. If someone continues to use a Power of Attorney after the person has passed away, there could be civil and criminal penalties for their actions. 


Need to get your will organised? Talk to the team at Coutts Solicitors & Conveyancers today.

Three common myths about wills

Myth One

"I don't need a will. If I die, everything automatically goes to my spouse anyway."

The truth: In some respects this is true, as a person's spouse is the first in line to inherit from an intestate estate. Without a will in place, the person will have passed away 'intestate', and the estate will be bound to follow a statutory order of beneficiaries set by the law in New South Wales to determine who is eligible to inherit the estate. However, this is still a dangerous way of thinking. You should consider what would happen if this person's spouse subsequently remarries or has children or step-children to a new partner? What if the spouse is bankrupt or has financial troubles and the estate assets he or she receives will pass automatically to the creditors of the bankrupt estate. What if this is already their second marriage, or worse, if there is a second spouse eligible to receive part of the estate? There are many different scenarios which would mean that this line of thinking would not play out as the person had imagined. 


Myth Two

"If I die without a will, the government receives all of my estate."

The truth: The New South Wales government is last in the line of a long list of relatives to receive a person's estate when they have passed away without a will or 'intestate'. The estate must exhaust every possible person in your family tree before the estate will pass to the government. The statutory order of beneficiaries is your spouse, then children, then parents, then siblings, then grandparents, then aunts/uncles, then cousins and then finally to the government. 


Myth Three

"My will is really simple. A homemade DIY will kit is good enough."

The truth: Will drafting can be quite complex. There are certain ways of writing clauses in wills that have been tried and tested over the years so as to remove any confusion about what the will-maker is trying to achieve in their will. There are also quite strict rules about signing your will and having it witnessed. Common mistakes in drafting and signing your will could mean that the will is invalid. 


Need to get your will organised? Talk to the team at Coutts Solicitors & Conveyancers today.

Australian court rules that an unsent text message is a valid will

The Supreme Court of Queensland has ruled this week that a man’s unsent SMS text message which cut out his wife and son was a valid will and was admitted to probate.

Mark Nichol, aged 54, tragically took his own life on 10th October 2016. He was found with his mobile phone that contained a draft text message to his brother David Nichol which read “You and [nephew] keep all that I have house and superannuation, put my ashes in the back garden… [wife] will take her stuff only she’s OK gone back to her ex AGAIN I’m beaten. A bit of cash behind the TV and a bit in the bank… My will 😊”.

The deceased’s widow Mrs Julie Nichol applied to the court for a grant of administration on intestacy, claiming that Mr Nichol had passed away without a will. This means that if the application was upheld by the court, Mrs Nichol would manage the deceased’s assets and would be the primary beneficiary of his estate. The couple had been married for one year of their three year relationship, and it was proven that the deceased had left his widow only two days prior to his death.

The deceased’s brother Mr David Nichol and his son also applied to the court for a grant of probate on the unsent text message and that it be treated as his last will.

Justice Susan Brown found that the reference to his house and superannuation and his specification that his widow was to take her own things “indicates he was aware of the nature and extent of his estate”. Justice Brown considered a range of facts and circumstances in her determination, and noted that the text message was “created on or about the time that the deceased was contemplating death”. She held that “the informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions” and referred to other cases of informal wills, such as videos and DVDs, before upholding the text message as Mr Nichol’s last will.

This decision will undoubtedly pave the way for more informal, unusual and even digital wills to be upheld by the courts. However, the decision should be taken with a level of caution and people should not rely on their phones or emails to draft their wills. Even if upheld by the court, the cost of proving the informal will would be incredibly high and each case would only be considered on the unique facts and circumstances.

For a will to be considered valid in New South Wales it must be in writing and signed by the will-maker in the presence of at least two witnesses who also sign the will.

For advice on drafting your will to ensure your wishes are met, contact Coutts Solicitors & Conveyancers today 1300 268 887.


If you or someone you know are in need of help, please contact:

Call 13 11 14

Call 13 11 14

 
Call 1300 22 4636

Call 1300 22 4636

Q&A: Wills, assets and blended families

Kaisha Blog - Blended Family.png

Thinking about preparing a Will for your blended family? Our Solicitor Kaisha points you in the right direction over at SimplyAskIt.

Q: 

How do I set up a Will for a blended family with overseas assets?

A:

Hi Michael,

Estate planning for blended families is hardly straightforward, and the standard DIY Will kits are generally only set out to cover the traditional nuclear family. With blended family structures becoming more common, there are certainly a few ways to ensure that your spouse will be looked after once you pass away, as well as maintaining your assets for your children of a previous marriage. These legal solutions will depend on the nature of your estate assets (including your overseas assets) and your family dynamics. I would recommend that you seek legal advice to understand your options and be able to prepare a Will that provides for your loved ones as you intend.

Need to get your Will organised? Talk to the team at Coutts Solicitors & Conveyancers.

This Q&A first appeared online at SimplyAskIt

What happens to our online life after we die?

Online Life After We Die

Everyone who comes to us to have their will done has already thought about what they would like to do with their house, personal items and bank accounts. But only very few consider their digital assets. Consider for a moment the size of your online presence – your email account which details the vast majority of your personal and business communications, your social media accounts which detail your day to day life, your online bank accounts, your eBay and PayPal account, your personal collection of photos, music, videos and e-books... All of these are assets that also need to be considered when planning your estate.

The NSW Trustee and Guardian say that while 9 out of 10 Australians have a social media account, 83% of these people have not had a discussion with their loved ones about what would happen to these accounts when they die, and only 5% of people with wills have covered this in their will.

In an age where people have more of an online presence, paper trails are disappearing and it is becoming increasingly important to plan for the digital assets you leave behind.

Four reasons you should plan ahead:

1. Ensure that your online records and assets can be found and accessed by your executor after your death.

2. Ensure that photos and videos stored on password-locked computers can be accessed so sentimental memories will not be lost.

3. Ensure your decision about what happens to your online social media accounts is recorded.

4. Reduce the risk of identity fraud by closing unmonitored accounts.

 

Tips for putting a plan in place:

  • Consider who you would like to manage your online life.

This could be your executor, a family member or a friend. It should be someone who has a basic knowledge of digital activities.

  • Make a list of all of your digital assets and online accounts.

For each item on your list, record the location, the username, passwords and security question for the person responsible for managing your online life.

Items to consider:

  • Online bank accounts
  • Home services – e.g. Telstra or Foxtel 
  • PayPal
  • eBay
  • Frequent flyer accounts
  • Business accounts
  • Email
  • Photos
  • Videos
  • iTunes
  • Cloud services
  • Facebook
  • Twitter
  • Blogs
  • YouTube
  • + more...

Do not include usernames, passwords and the answer to security questions in your will. Your will becomes a public document once admitted to probate. To ensure privacy and protect against fraud, keep your passwords as a separate document and let your executor know where to find it.

Never provide the password for any online bank account – your executor does not need to know this information.

Remember to keep the list updated, particularly because some websites will frequently prompt the user to update their password.

  • Maintain your personal digital archive.

Keep your personal files up to date by periodically downloading your photos, videos and home movies onto your computer. Consider backing up these files on a digital storage device such as an external hard drive or USB.

Keep in mind that storage methods are continuously changing. We haven't used floppy discs or VHS since the early 2000's. You may need to update the storage method you are using as technology advances.

  • Think about what you would like to happen to your social media accounts after your death.

Would you like your family and friends to be able to access your photos and print them? Would you like your social media accounts deleted or kept active and memorialised?

Facebook has an option to memorialise your Facebook account. Facebook will shut down the account so no one else can log in, turn off birthday notifications and allow only confirmed friends to post memorials in the comments section of the page.

  • Know the terms and conditions of the agreement, license or policy of your account.

Different online accounts and service providers have different terms and conditions that affect what happens to your account when you die. For example, some email providers will give the next of kin a disc of all the digital data on that account. Google have an online inactive account manager. Yahoo will not transfer the content and will automatically shut down the account. Facebook have a proper method of shutting down the account as it is a violation for someone other than the account user to log in and change things themselves.

If you make sure you are aware of these requirements, it will be easier to plan for someone else to manage your online life after your death.

  • Decide where you would like to keep the instructions for your online life.

You could store the list and passwords somewhere safe like in a safety deposit box, with your will or among your personal files at home and let your executor know where to find it.

Just don't store it on your password locked computer.

Article written as an update to the original entry posted in December 2014. Updated 10 April 2017.

Q&A: A simple Will

Thinking about preparing a Will? While your Will may be rather simple, our Solicitor Kaisha points out some things to consider over at Echofied.

Q:

I need to write a Will. As it is likely to be rather simple (leave everything to my wife, then daughter) can I simply type it out and store it securely, or is legal advice necessary?

A:

Hi Michael,

Whilst your wishes may be rather simplistic and legally you are allowed to write your Will yourself, a DIY Will template is not always a great idea! Will drafting can be quite complex. There are certain ways of writing clauses in Wills that have been tried and tested over the years, so as to remove any confusion or uncertainty about what you are trying to achieve with your Will. There are also very strict rules about signing your Will and having it witnessed. Common mistakes in signing your Will could mean that your Will is invalid.

There are some situations where I would consider it absolutely necessary to obtain legal advice:

  • If you own property or investments in another state or overseas.
  • If you own a business or are an officer of a Company.
  • If you are financially responsible for someone other than your immediate family.
  • If you are trying to set up a testamentary trust for a particular beneficiary.

Whilst you might save money with a DIY today, there may be large costs to your Estate if you get anything wrong.

Need to get your Will organised before the New Year? Talk to the team at Coutts Solicitors & Conveyancers.

This Q&A first appeared online at Echofied

Wills: A family recipe

As the festive season starts to crank up people are busy planning their Christmas dinners. Each family have their own traditions and this is reflected in the different types of food they serve up. We take care to plan meals that people can share and enjoy.

When discussing a Will with a client, different family arrangements often come up as well. Common ingredients we use to provide a person with peace of mind that their final wishes will be carried out include:

2 cups of fairness

Does an equal split of your assets among children result in a fair outcome? Maybe one child has a greater need to be provided for.

1 cup of kindness

Is there a charity who could benefit from a gift? Leaving your favourite charity some money is a great way to support their work.

1 cup of forgiveness

It is common for people to give a son or daughter a lump sum gift towards the purchase of their first home with a joking comment “here is an early inheritance”. But what does that expression mean? Does it mean it’s a loan from you that they need to repay to your estate? Or, is it meant to come out of their share of the estate? Whatever you mean by it, we need to include a specific clause.

1 tablespoon of executor clauses

This is to ensure that your executor is not just appointed, but is empowered to undertake a variety of roles to properly see to the administration and distribution of the estate.

Method

Once you have your ingredients all combined, we blend it together. Oh, and speaking of blended families, if you own property with your partner, how you hold that property is vital. If you are both joint tenants, the other joint tenant will automatically inherit your share in the property regardless of what your Will states. This can cause tension as people can have real fears that their own children might miss out because the new partner takes the house - often the main asset of the estate.

For alternative toppings, what if the partner re-partners and they update their Wills? What if they have a falling out with your children? These are all valid concerns but if you own the property as tenants in common, your Wills can state who you wish to give your share of the property too. This will result in your partner and your children ending up on title together. This could be fantastic and everything you dreamed of or, a recipe for disaster itself.

These are not easy decisions to make and much like cooking a macaron, getting the balance between your partner and your children is vital, so it doesn’t all collapse in a big mess.

Serve your Will with the correct execution - two independent witnesses, both over eighteen who know exactly where to sign. Store in a safe place. If properly drafted, it should stay fresh for many years to come.

Remember - everyone’s family is different. If you think it’s too hard to make arrangements in a Will this doesn’t mean you should toss it into the too hard basket. Departing the world without a Will is harder on those left behind.

Need to get your Will organised before the New Year? Talk to the team at Coutts Solicitors & Conveyancers.

What is a Power of Attorney?

Kaylene-Power-of-Attorney.jpg

A Power of Attorney is a document that allows another person to legally manage your financial and legal affairs. A Power of Attorney can be General or Enduring.

More commonly used is the Enduring Power of Attorney that many people set up at a time in their lives when they are managing their own affairs quite well. However, understanding that sometimes health can fail, they chose to set up a Power of Attorney on their own terms and nominate that it will commence operating at a later date (usually when their treating doctor determines they are no longer capable of managing their own affairs).

What can a Power of Attorney do?

An attorney can undertake any actions that you can- they can pay your bills, liaise with government departments and withdraw money from your accounts, in addition to open and close bank accounts, enter into lease and hire purchase agreements and even sell your house. So it is vital that you trust the person you appoint as your attorney. It can be helpful to have more than one to promote accountability. An attorney must avoid placing themselves in a position where their interests are in conflict with yours. A common example is where there is an adult child still living at home with shared expenses who then manages your money.

An attorney must act in accordance with your directions. If you have set up a Power of Attorney and you now wish to change or stop it, you must formally revoke this Power, provided you have the capacity to make that decision.

If your attorney wants to deal with your land, the Power of Attorney must be registered with the LPI (formerly known as the Land Titles Office). If a registered Power of Attorney is revoked, that revocation should also be lodged with the LPI.

What is a General Power of Attorney?

A General Power of Attorney is convenient to set up for a specific purpose. For example, if you have an overseas trip planned and while away you will have legal documents that require attention, perhaps you have bought a house and settlement is while you are away, or you have purchased an unregistered block of land that might register during your trip. Allowing a trusted family member or friend to sign documents on your behalf means the transaction will continue in your absence. A General Power of Attorney will automatically cease if you lose your mental capacity.

Why appoint a Power of Attorney?

A Power of Attorney is a vital document to help a person maintain independence in their later years, should they actually need it. It allows them to retain control of their affairs by stating who and on what terms their financial and legal affairs may be managed. A Power of Attorney should be appointed in advance of a situation where you may find yourself lacking the mental capacity to make their own decisions.

We often receive enquiries from people who have a parent that has developed dementia, alzheimer’s diseases or are otherwise not able to manage their own affairs. The children state that they have been able to help their parents in the past but now an organisation, often a bank, is requiring a formal Power of Attorney. The difficulty with this situation is, when a person lacks the mental capacity to manage these transactions, they almost always lack the mental capacity to instruct a solicitor to prepare a Power of Attorney and our hands are tied.

When a person has lost their capacity and either needs a Power of Attorney made, or, needs to revoke a Power of Attorney, they or concerned people need to approach the Guardianship Tribunal for a decision to be made on that person’s behalf.

Picton legal office reopening

Picton Flood Recovery

On the weekend of Sunday 5th June, most of us were aware of the wild weather that swept through the Macarthur Area. The lucky ones were rugged up inside their homes with the heating on, watching the heavy rain and gutters over flow through their windows. Many people started to realise by late Sunday afternoon that the heavy rain was causing hazardous floods in many areas, with pictures posted on social media of flood waters rising at Campbelltown Station, Mount Annan and Leppington. But it was the images of the high water levels sweeping through the main street of Picton that alarmed the staff at Coutts Solicitors and Conveyancers, as this is the location of our Picton legal office .

The Main Street of Picton Flooded

The Main Street of Picton Flooded

Coutts Solicitors &  Conveyancers is located on the corner of Argyle Street and Cliffe Street, very close to where these photos were taken. We all felt sick at the sight of the images of the floods, but at this stage had no idea of the damage caused to our offices.

On Monday morning none of the staff were able to attend the Picton office. All the roads were closed due to the high flood waters, so all Picton staff were relocated to the Narellan Office to work. Throughout the day we heard reports of neighbouring businesses front windows being  smashed by the rush of flood water and losing all of their stock. We could could not view the damage to our office, until the flood waters dispersed and roads to the area were reopened. However we still had hope,  we are on the higher end of the street, a significant distance away from the burst river banks.

Coutts Solicitors front entrance after the Picton floods.

Coutts Solicitors front entrance after the Picton floods.

It was Monday afternoon by the time we had access to our Picton legal office. The damage was immediately evident, with a brown sludge being left on the floor of the entire office (under the sludge are glossy white tiles). The smell was also horrendous, the whole office smelt like a sewer and the brown sludge looked like sewage, it was heartbreaking.

The damage was clear in every room,  computers, files, printers and stationary all clearly showing the water damage. We established by the water marks on the wall that the water levels had submerged the office 30 - 40 cm. The money and time needed to repair the office had yet to be calculated, but at this stage we realised the damage was worse than we initially thought. We had not been as lucky as we had hoped on Monday.

After the devastating news of our own damage we began to hear unsettling rumours of Picton businesses insurance claims being rejected. Many insurance companies  had found a loophole to avoid paying out for damages.   We watched in dismay as  fellow Picton business owners coped with the crushing news, many had been operating their whole life in the area and were now out of business as a result. We joined the community in their reaction of anger and disgust at theinsurance companies tactics to save their money.....  We were yet to be assessed by our insurance company, so the future of our office remained uncertain.

Thanks to our Insurance Broker

Luckily, we had a wonderful insurance broker (Jared from Ausure) who was communicating with our insurance company. He organised for an assessor to come out to our office and view the damage. We were fortunate enough that our Insurance company decided we were able to put in a claim for the damage. It was a huge relief, our Picton legal office would reopen, but we still had a long road ahead with the clean up and replacement of our equipment to take weeks.

The aftermath of the Picton floods resulted in many businesses on the main street shutting down for weeks,  some had to close their doors indefinitely. When we did go to Picton, it looked like a ghost town, we were worried about the future of business  and concerned if the town would recover.

Back in business for Picton!

Now, nearly 3 months after the devastating floods, their is a light at the end of the tunnel. Community events have been held to raise money for the businesses and residents that were badly effected by the natural disaster.  Local businesses offered a helping hand to those in need with, discounts and charity donations. As much as the Picton floods caused so much trauma and stress to its residents, it has been amazing to see the generosity and caring spirit of people in the whole of the Sydney area. All the donations and charity to the Picton flood relief have helped Picton get back in business.

The Coutts Solicitors & Conveyancers Picton legal office is coming close to finishing its repair and is set to reopen on or before the 31st August. We are extremely thankful for those people who contributed to its refurbishment and  helped us to get back to business. We are looking forward to reopening our doors and being able to provide the Picton residents with legal services once again.

Please remember to "Go Local"  when choosing a service or purchasing products, your support will help Picton businesses to thrive once again.

I have been left out of a Will! - Can I make a claim?

When a person dies, it is often a troubling time. When a person finds out they have been left out of a Will it can increase the stress, particularly if that news comes as a surprise. There are two main things to consider if you have been left out, if you are considering what your legal rights are: are you an eligible person and, if so, what are your needs to be provided for?

Who is an eligible person?

A spouse or a child of the deceased are considered to be eligible persons. There is a third category that defines any person who was in a relationship of financial dependence with the deceased to be eligible. We are waiting for a few decisions to be made giving us examples of what types of people may fall into this category. But until it is thought that some types of carers who are paid in kind (perhaps with free food or board) for their assistance and grandchildren who receive financial support from the deceased. But it is still a fairly untested category.

What kind of needs does the Court consider?

When making a claim you will need to provide solid evidence of your financial circumstances: what assets you own, how much super you have, your income, your debts and any future needs (such as medical and education expenses). If you have a spouse, the same information will be required from them too. Then your position will be compared to those named in the Will (the beneficiaries). If you are in substantially worse of position, the Court may order that some of the estate is given to you. The Court will also consider your relationship with the deceased, any of your conduct that may be relevant to why you were left out in the first place and of course, the wishes of the deceased. After all, the fact they choose to disinherit you will not be ignored by the Court.

It is very important to know that you only have 12 months from the date of the deceased’s death to file your Summons, commencing your claim. Although it is possible to commence an action after 12 months has passed, you need to convince the Court that they give you their permission to start your claim.

Because of the strict time requirements imposed by the Court, if you have been left out of a Will you should legal advice as soon as possible with our experienced estate litigation solicitors.

A note to those people who have a Will already or are considering making a Will that will leave someone out. It is very important that you meet with an experienced Will practitioner to discuss your particular circumstances and what can be done to protect your estate against silly claims.

Coutts can help you with your Will or advise you of your rights if you have been left out of a Will. Contact Coutts Solicitors & Conveyancers today.

I am an Executor of a Will - What do I do?

If you are an Executor of a Will you may be thinking 'What do I do?". Being an Executor is an important job. Many consider it to be an honour to assist with the carrying out of a person’s final wishes. However, for others it is a stressful time- they fear family conflict bubbling up to the surface, find the probate process a nightmare of court rules procedures and don’t have the time to sort through the paper and work out what the person owned. The first task an executor needs to do, is to locate the original Will (if someone has passed away without a will, read this article- What happens when a person dies without a Will?). Some people store these at home, but many have their original Will with their solicitor or, less common now days, in a bank deposit box. Solicitors have ways to communicate quickly with other solicitors to determine where the original Will is. You also need to obtain the original death certificate before you can apply for Probate

Probate is the process that describes the Supreme Court verifying the validity of the Will and then granting the power to the executor to start administering the estate. Once probate is granted, an executor can start a process of “calling in the assets”, such as removing funds and closing bank accounts, selling property and share and the like. Before probate is granted an executor is personally liable for any errors, so it is vital an executor wait until probate is granted.

We are experts in locating Wills, assets, bank accounts and property. We are well experienced in the probate process as well as distributing the estate the beneficiaries (that is, people named in the Will as receiving an inheritance). We can also advise you on superannuation issues, advise if you need to file a tax return (on behalf of the deceased person or the estate), help you manage any claims made against the estate and make sure you follow the Will’s intentions and the law in dealing with the estate.

If you are an Executor of a Will see Coutts Solicitors & Conveyancers for your Probate matter. Call 1300 268 887 or click here for a call back.

What happens if a person dies without a Will in NSW?

What happens if a person dies without a Will in NSW? If a person dies without a Will it is up to a family member or a friend to apply to the Supreme Court for Letters of Administration. The process is very similar to obtaining a grant of Probate on a Will, but there are a few more steps involved. When someone leaves a Will, they are entitled to leave their items to whomever they please. However, in the absence of a Will, a person’s property is distributed in accordance with the law. It will automatically pass to a person’s spouse, then any children, then parents and so on and so on. Things can become complicated very quickly where there is more than one “spouse”. Because the definition of spouse is fairly flexible, it is possible for someone to have separated from their husband or wife without being divorced and living in a de facto relationship and then there are two potential spouses to deal with. Things can also become complicated where there have been deaths, divorces and remarriages or other events that have changed people’s surnames- generally where this has happened, the Court requires original birth, deaths and marriages certificates. So the paperwork required can become pretty expensive, pretty quickly. All applications for Letters of Administration would be filed within 6 months of the person passing away. Sometimes a person has left document that is meant to be a Will but it has issues, such as it is not signed by the deceased, or it was signed by the deceased but not witnessed, or, not clear what the person wanted. Another situation can arise where a valid Will has been made but the executor or executors named have all since passed away. In these cases Letters of Administration is still applied for but these documents are attached.

If someone has passed away and they only owed joint property, for example a joint bank account and they owned a house as a joint tenant, then it’s probably not necessary to apply for Letters of Administration. However, you still need to transfer the property into the survivor’s sole name to ensure the title deed is updated.

Coutts Solicitors and Conveyancers are skilled at preparing the necessary affidavits, detailing how it is known there isn’t a Will and the thorough searches for the Will that have been undertaken and applying for Letters of Administration. We can provide advice about which family members will be inheriting and undertake all of the communication, as well as explaining to other disgruntled people why they might be missing out.

If you are next of Kin to someone who has died without a Will, contact Coutts Solicitors for expert advice on 1300 268 887.

If you are an Executor of a Will and want to know what to do, read this article - I am an Executor... what do I do?