Executor

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