Wills & Probates
The importance of making a Will
Making a Will provides a legal direction to ensure that your assets and possessions are distributed as you direct and/or wish when you die. If you die intestate or your Will is rendered invalid, your estate may be divided using a statutory formula that may not necessary reflect the decisions you had intended and as a consequence, cause undue hardship, and/or extra cost and delay for your family.
If you are a sole company director and a sole shareholder and do not have a valid Will, your death may leave the company without any person properly authorised to manage the company immediately. See ASIC’s Information Sheet (INFO 73) The importance of sole company directors/shareholders having a will.
If you die intestate and don’t have any living relatives, your estate is paid to the state government.
What is Probate NSW?
When a person dies leaving assets in NSW, all assets of the deceased (both real estate and personal property) are deemed to be vested in the NSW Trustee by reason of section 61 of the Probate and Administration Act 1898.
If the deceased died leaving a valid Will, it is the duty of the executor named in that Will to call in the assets, pay liabilities and distribute the estate to the beneficiaries so named.
In order to gain the authority to carry out their duties, the executor may apply to the Supreme Court of NSW for a Grant of Probate of the deceased’s last Will.
The process of obtaining the NSW Grant of Probate confirms the validity of the Will, the identity of the executor and the assets and liabilities of the deceased.
The Grant of Probate is not only proof that the person named in the Grant is entitled to handle the assets, but upon the Grant of Probate all assets of the deceased are vested in the name of the executor and not the NSW Trustee.
Once Probate has been obtained, asset holders (such as the Bank, Department of Lands, Aged Care Facility or Share Registry) will release or transfer the deceased’s assets into the executor’s name so to enable the executor to distribute the estate to the beneficiaries under the Will.
Do I need the Grant of Probate?
You might need the NSW Grant of Probate if the deceased held assets requiring the Grant of Probate for their release. Asset holders such as banks, share registries, nursing homes, the Land Titles office (Land and Registry Service NSW) and other financial institutions may wish to indemnify themselves by asking the executor, or next of kin, to provide a certified copy of the Grant of Probate before they hand over the assets.
The Supreme Court of NSW does not force all executors to obtain probate in NSW.
Disputing a Will
When a person dies and leaves a will that fails to make adequate provision for a family member or family members of that person, the family member(s) may be able to apply to the Court for an order for provision out of the deceased’s estate.
A person may be eligible to make a claim for provision if:
they are the spouse of the deceased,
or lived in a domestic relationship with the deceased,
or if they are a child, grandchild or stepchild of the deceased.
In NSW, the Family Provision legislation provides more broadly that any person may be able to make a claim if he or she was at any time wholly or partly dependent on the deceased and was at any time a member of the same household as the deceased. If any of these categories appears to apply to you, it is worth making an appointment to seek legal advice as to whether you satisfy the requirements to be eligible to lodge a claim under the relevant legislation.
In determining whether to make an order for family provision, the Court will look at whether adequate provision has been made for the proper maintenance, education or advancement in life of the family member or other applicant. There is a broad range of factors which the Court will take into account, including the nature and duration of the relationship between the applicant and the deceased; the character and conduct of the applicant, the financial situation of the applicant, and, in particular, any financial or non-financial contributions that the applicant made to the deceased during their lifetime. Generally, an application for provision out of an estate must be made within twelve months of the death of the deceased person.
For more information please contact YFX Lawyers on: (02) 8677 5386
For more information, please contact YFX Lawyers on (02) 8677 5386 or ring to make an appointment with our office.