Have you been left out of a will?
Have you been left out of an inheritance and think you should be contesting the will? We are highly experienced in all matters of succession law and can help you navigate this highly specialised area of law. Our services include preparation of wills, applications for probate or letters of administration. We also specialise in contested probate matters.
If you are an executor and you receive notice that someone wishes to make a Family Provision claim, or you need to make a claim against a deceased estate, click here to see if you qualify.
Contested Probate - Can a will be contested?
Whilst the Courts are generally slow to change a testator’s wishes in will, some wills can be contested. If you have been left out of a will or you don’t believe adequate provision was made for you in a will, you may be eligible to make a claim on a deceased’s estate and you can initiate proceedings contesting a will or family provision claims.
You are an “eligible persons” to make a Family Provision Claim if:
- you were a spouse of the deceased;
- you are a person with whom a deceased was living in a “de facto relationship” at the time of death;
- you are a biological child of the deceased;
- you were a former spouse of the deceased;
- you are a grandchild of the deceased who was wholly or partly dependent on the deceased;
- you are a person who was wholly or partly dependent on the deceased and a member of the same household as the deceased; or
- you are a person with whom the deceased was living in a “close personal relationship” at the time of the deceased’s death.
If you are an eligible person, you have twelve months from the date of the deceased’s death to commence a Family Provision Claim in the Supreme Court. Before the claim proceeds to a hearing, it is mandatory that you and the executor of the estate attend a Mediation to attempt to settle the claim.
We represent parties that are eligible persons challenging a will or the executor of an estate. We advise our clients throughout the process of the family provision applications in the Supreme Court of NSW and work to ensure the best outcome for our clients. We will help you resolve your dispute in a cost effective and timely manner from start to end.
If you would like to know if you can make a claim for provision, or you are an executor needing to defend the deceased's estate, click the button below to fill in your details and we will be in touch very soon.
Why do I need a will?
A will can be simple or complex depending on your circumstances and it should be reviewed every 3 to 5 years . A will is a document that sets out your wishes in the event of your death. Regardless of age or wealth, everyone must have a will. We provide will drafting services and can advise you on the best ways to provide for your loved ones.
With a will, you will be able to appoint a trusted and responsible person to manage and finalise your estate when you pass away. In addition, you will be able to:
- Determine how your assets are distributed to your beneficiaries;
- Nominate a guardian to care for your children
- Direct your funeral and burial arrangements and many other things.
There are also certain legal requirements that must be satisfied to ensure your will is valid. We can guide you through this process and ensure that your will satisfies all legal requirements. We provide will drafting services by a qualified lawyer.
What happens if I don't have a will?
If you pass away without a will, you would die intestate. This can result in your assets being distributed in a significantly different manner to how you would prefer them to. Having a valid will prevents negates intestacy rules from applying.
Second marriages or new de facto relationships, the death of family members and step-children can impact how your assets will be distributed if you die intestate. If you don’t have a will, the risk of your assets being distributed differently to how you would have intended, combined with the increased cost and time involved in finalizing your estate will make it significantly more difficult for your family members already grieving their loss.
Allegiant Lawyers are experienced in wills drafting. We are also higly experinced in all matters of contesting a will and we can help you by providing you with sound information which you will need when deciding how your assets are to be distributed upon your death.
What is Probate?
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 left 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 obtain the authority to carry out their duties, an executor may apply to the Supreme Court of NSW for a Grant of Probate of the deceased’s last will. A grant of probate not only authorises the executor to handle the assets, but upon obtaining the grant, all assets of the deceased are vested in the name of the executor. The executor will then take steps through his solicitor to carry out other duties in relation to the deceased estate, such as transferring property, distributing funds to beneficiaries etc. An application for a grant of Probate must be in the prescribed form and satisfy the Supreme Court of NSW.
A grant of Probate is a document issued by the Supreme Court after you pass away, which confirms the validity of your will and authorises your executor to manage and finalise your Estate. Probate is necessary if:
- you own property
- have bank accounts with a value of more than approximately $30,000.00,
- have shares valued at more than $50,000.00
- have superannuation which is going to be paid to your Estate.
What happens when you engage us to apply for Probate?
Once you appoint us, we will commence the application by arranging for Notice of Intended Application for Probate to be published via the NSW Supreme Court Online Court. We then draft all required Court papers and meet with you to sign the application. Following this meeting we will lodge the application with the Supreme Court and notify you once the grant of Probate has been made. Finally, upon receiving the grant of Probate, we organise for a further notice to be published to protect you from any claims of creditors.
Is a grant of Probate required?
A grant of probate is not required if the deceased held joint assets which can be transferred automatically by a right of survivorship. This will not be the case if the assets are held as tenants in common.
Many asset holders (e.g. banks) will not release or transfer the assets of the deceased to the executor until a grant of Probate is obtained and in these circumstances the executor will have no choice but to obtain Probate.
In circumstances where the estate comprises of only of a few assets of small value, it is common for the asset holder to dispense with the requirement of Probate provided that the executor agrees to indemnify the asset holder for any claim made by, creditors, beneficiaries or any other executor. An executor may choose to do so to avoid the need to apply for the grant of Probate in NSW.
What are the benefits of a grant of Probate?
By obtaining Probate and following the procedure set out in the Probate and Administration Act (NSW), the executor gains two very important advantages:
Authority to deal with assets
Section 44 of the Probate and Administration Act 1898 (NSW) provides that upon the grant of probate, all property of the deceased (both real estate and personal property) within NSW, shall be vested in the executor named in grant from the date of the deceased’s death.
Therefore, unless a grant of probate is obtained, the executor is not legally authorised to deal with those assets and runs the risk of being held personally liable for intermeddling with the estate assets if a later will is discovered.
Protection from claims
Following the grant of probate being obtained, a publication of an intention to distribute the assets of the deceased’s estate will be done upon the executor’s instructions. Provided the executor has waited at least 30 days to distribute the estate from the date of publication of notice, and at least 6 months has elapsed since the date of death, the executor may then pay all creditors that have notified him / her of their claim. After all creditor claims have been settled, the executor may then distribute the assets of the estate to the beneficiaries.
A grant of probate protects an executor of potential claims or challenges to a will. If a creditor or beneficiary (including a person seeking to challenge the deceased’s will) later makes a claim on the estate, the executor can rely on the grant of probate and publication of notices prescribed under the law and be protected from the claim. Unless the grant of probate is obtained and the requisite notice published, the executor may be held personally liable for any dealings or distributions made in relation to the estate, and even if these dealings were made honestly and with good intentions.
Click the button below to send a free query on your Probate matter or for more details:
I'm recently separated or divorced. Should I update my will?
It would be wise to do so. Due to the extended period of time in between separating and obtaining a divorce, this could pose difficulties if you were to pass away during this period. If your will remains unchanged, your former spouse will be entitled to receive your assets, regardless of your separation agreements or whether you are finalising your property settlement. You can avoid this risk by simply making another will following your separation.
Click the button below to contact us today about our will drafting services.
What is a Power of Attorney?
A Power of Attorney is a document that operates during your lifetime and allows you to appoint a person who is legally authorised to manage your legal and financial affairs on your behalf. You can choose whether this power operates immediately, or only if and when you are unable manage your affairs.
A Power of Attorney allows your designated attorney to manage your bank accounts and sign legal documents on your behalf. However, they cannot change your will or use the power to benefit themselves in any way.
Your attorney should be someone who is trustworthy, and who can be available to assist you if required. If you don’t have a POA, should you succumb to illness or an accident that can leave you incapacitated, your family will need to undergo an often lengthy and complex process of applying to a guardianship tribunal at NCAT to be appointed as your financial manager.
Click the button below to send a free query for obtaining a Power of Attorney.
What is an Enduring Guardian?
Appointing an Enduring Guardian is a document that operates during your lifetime and allows you to appoint a person who is authorised to manage your affiars. This means that your guardian can only make decisions on your behalf if and when you are unable to make or communicate your decisions due to ill health or incapacity.
Some of the decisions which a Guardian can make are:
- decisions about where you live
- what healthcare you receive
- consent to or refuse medical treatments for you on your behalf
- accessing your medical records
- decisions on organ donation and life support
Click the button below to send a query for more information about appointing an Enduring Guardian