Wills and Succession
Estate planning ensures surviving family members receive the assets appropriate to each designated person from a deceased estate. As one of our specialties is deceased estates, our experienced solicitors are well educated in the area of wills and estates. This experience ensures everything is established under the direction of the executor of a will; while adhering to applicable laws.
A will is sometimes simple, but always an important document. In a way, it is the voice that speaks for the deceased individual directing their wishes upon death. The executor of a will can be a lawyer or a family member who will have the fiduciary duty of ensuring the provisions of the will are carried out precisely and all assets are distributed properly.
Sometimes family disputes arise because there is no will or a family member believes they are not receiving their proper entitlement. These types of matters are best handled by our estate solicitors to ensure the deceased estate is handled properly before it escalates into a family dispute that can tear a family apart.
Succession Act 2006
The Succession Act 2006 determines how wills and estates are to be handled in New South Wales. Since all surviving family members must ensure they are following the law, it is usually best to consult with a lawyer that has experience with wills and estates. Our estate law experts will help you navigate the process by helping you to establish a legal will as well as handle all matters regarding a deceased estate.
When a person dies without a legal will (“intestacy”), the beneficiaries are determined by the order set out in the Succession Act 2006. This requires the appointment of an Administrator which, in turn, requires consideration and a determination as to “who” is the most appropriate person to be appointed to act on behalf of the deceased. Court approval of that appointment is then required.
Not all assets are within the scope of a will for example:
- Property owned as joint tenant with another.
- Superannuation is governed by the superannuation trust deed of the fund rather than the terms of a will.
- A family company is a separate legal entity and the real value lies in its turnover. However, these assets are not usually owned by an individual who, as a rule, is a shareholder and can therefore, only bequeath those shares.
To understand the nature of your assets and therefore how best to deal with it require estate planning.
Claims on a Deceased Estate
Notwithstanding the existence of a will, claims may arise. Any such claims tend to fall into two broad categories. The first arises from some doubt about the circumstances in which a will was executed (fraud, duress) or perhaps the capacity of the testator at that time. On this basis, it is then sought to challenge the will. The second arises from a claim for provision by an “eligible person” as contemplated by the Succession Act 2006. That claim is made on the estate or notional estate of the deceased on the basis of “inadequate provision”. Either type of claim can result in costly and protracted litigation with the corresponding erosion of the estate assets which matters need to be handled with care to preserve the assets of the estate.
With estate planning, we can help protect your lifelong accomplishments and make sure your wishes are carried out. In the event of a deceased estate without a valid will, our firm can assist with the appropriate applications for Grants of Administration. If circumstances arise where contesting a valid will or against an estate we can prosecute or defend the claim on your behalf.
Call 02 9283 2355 today and we will answer your questions regarding wills and estates.