Wills & Estate Planning
"A well developed Estate Plan will protect you and your family against future life events and ensure that your loved ones are cared for according to your wishes."
Our number one priority is to care for our families. Appropriate insurances protect against common life events. Less readily discussed is the inevitable demise of our mental agility and our death, or the possibility that we may become incapacitated sooner than anticipated. For many, life's events run their course, leaving family estates vulnerable to unnecessary taxes and expenses which erode what would otherwise have benefited loved ones.
Estate planning entails putting in place a financial strategy for the structuring of your estate to best deal with financial risk.
While the most obvious risk is your death, unexpected life events such as illness, disability, relationship breakdown or bankruptcy can affect you and those close to you with devastating outcomes.
The best way to protect your family is to establish your estate plan while you are still able to do so. This would typically entail a review of your assets with a view to adopting tax-efficient ownership structures and detailing clear instructions as to their distribution in the event of your death. Clarity of your intention will also assist in minimising family discord or protracted court proceedings.
A properly prepared Will is an essential document. This is particularly important should you marry or enter into a de facto relationship, start your family or if you have or have had in the past, financial dependants. Making a Will can appear to be straightforward. However for a Will to be valid, it must satisfy a number of legal requirements.
An invalid or poorly drafted Will will require additional work for your Executor in the administration of your estate, incurring additional costs which are bourne by your estate. Some gifts may fail, causing an intended beneficiary to be unintentionally overlooked or receive a lesser share than intended. Or the Will or parts of it may be declared invalid and set aside. Such deficiencies may leave your Will open to challenge by a disgruntled beneficiary or someone with valid entitlement but who was excluded from your Will.
Probate/ Letters of Administration
In making your Will you be asked to nominate one or more individuals to act as your Executor in the event of your death. The Executor assumes responsibility for distributing your estate in accordance with your wishes as expressed in the terms of your Will.
In certain circumstances the Executor will be required to apply to the Supreme Court for a grant of Probate. Probate is official recognition by the Court that the Will is valid and the Executor has the legal capacity to arrange the administration of the deceased’s estate, that is, the settling of the deceased’s affairs and distribution of the remaining assets according to his/her wishes as set out in the Will. Once probate has been issued, the Executor must fulfil all legal obligations, including finalising tax and other financial obligations, before distributing the remaining assets amongst the nominated beneficiaries.
Persons dying without a valid Will are said to die “intestate”. Sometimes a person may die partly testate and partly intestate. This occurs where only part of their Will is valid, while other parts of the Will fail due to poor drafting or where the legal rules of construction have not been followed.
Administration of intestate estates can be more complicated. Firstly a suitable Administrator must be appointed by the Supreme Court of NSW. The Administrator must be a person who would be a beneficiary under the laws of intestacy as defined in the Succession Act 2006. It is usually the partner, parents or children of the deceased who applies for a grant of Letters of Administration.
Once the Court issues the grant of Letters of Administration, the administration of an intestate estate proceeds roughly on the same basis as if there was a Grant of Probate. The Administrator has the power to collect in the assets of the deceased, attend to payment of the liabilities and distribute the estate according to the provisions set out in the Succession Act 2006. The Administrator will be required to identify all of the beneficiaries defined under the laws of intestacy using certificate evidence.
Administration of an intestate estate may be an expensive and time-consuming task.
A more equitable share of a deceased estate may be sought by eligible persons under the Succession Act 2006 by filing a claim in the Equity division of the Supreme Court. We are experienced in acting on behalf of Applicants and on behalf of Executors in defending such claims.
We are able to assist you by undertaking a review of your assets and preparing the relevant documents, including your Will, trust structures, succession agreements, as well as documents giving effect to Power of Attorney and Enduring Guardianship arrangements.
We also provide guidance and assistance to Executors and Administrators in relation to applying for Probate / Letters of Administration and in attending to the administration of deceased estates.