Have you lost a loved one recently?
- Do they have a will?
- Do they own property in New South Wales?
- Do they have bank accounts or shares of more than $20,000?
You may need to obtain a Grant of Probate from the Supreme Court of NSW.
You may need to obtain a Grant of Probate from the Supreme Court of NSW.
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.
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? 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?
Can an ex personal friend claim inheritance benefits from your estate if you die? In March 2014 the Supreme Court of New South Wales considered this question. In this case, a wealthy man died after a battle with cancer. He left his multi-million dollar estate to his second wife, Lisa,and their two children. His first wife, Adele, sought provision from the estate.
He had met Adele in the US in 1988 and they were married shortly afterwards. They divorced in 1995 and did not have a Family Court Property orders made at the time. The reason they divorced was that they could not agree on whether to permanently settle in Australia or the US. They had no children together. It seems that they both continued a close friendship after their divorce and Adele held hopes they would resume a romantic relationship. He made representations to her, her sister and her father that he would look after her. He married Lisa in 2009 and together they 2 children. At this time it seems his contact with Adele became infrequent.
In granting Adele provision, the judge considered relevant the fact that the estate was very large and in providing for her, Lisa and the children were still being taken care of. He also decided that the lack of fault or acrimony attached to the breakdown of the marriage, her ongoing friendship and the lack of a family law settlement were relevant factors in Adele’s favour. Adele had little financial means of her own. She was granted $200,000.00 from an overall estate of approximately $11,000,000,000.00
This case again highlights some of the factors a court will consider when a previous partner is seeking provision from an estate. It is also a timely reminder of the dangers of testators telling people that they will be looked after in the Will, but then not updating their Will.
It is also an important for anyone who has ended a relationship- whether it is a marriage or a de facto relationship- of the importance of having a formal property settlement. Even if the split is mutual and friendly, it is important to formalise the end of the relationship from a financial point of view. The Judge even commented that had there been a property settlement following the end of their relationship, the first wife would not have succeeded in making a claim against her ex-husband’s estate.
If you need to clarify your circumstances for either a separation or Will call Coutts Solicitors & Conveyancers on 1300 268 887.
Thinking about the worst is not something that any of us like to do. But unfortunately, life doesn't always turn out the way we had planned. Preparing a Will isn't just for those at retirement age. If you have any assets or money at all, you should have a bulletproof Will in place to make sure they are left with the right beneficiaries. In the absence of a Will, your home, savings and more importantly - the financial security of your family is at stake. We've seen it all too often and it’s heartbreaking.
The number of people contesting Wills today is much higher than it used to be, which provides another compelling reason to put your Will in place. Firstly, people are becoming wealthier, so there is more wealth to leave behind. Secondly, the rising divorce rates are creating complex family structures that aren't as straightforward as they were in the past.
If you haven’t yet prepared a Will, consider the following questions:
If you already have a Will prepared and haven’t looked at it for a while, it might be a good idea to go through it again and make sure you've left no stone unturned. Perhaps your situation and circumstances have changed and you wish to make some adjustments. There’s no better time than today.
Ensuring there are no discrepancies in your Will is not a simple task. We can work with you to ensure your Will covers all facets of your estate, to reduce the likelihood of any legal dispute. If you need some expert help on preparing or reviewing your Will, don’t hesitate to get in touch.