Allegiant Lawyers

more about wills...

Signing a will power of attorney or enduring guardianship

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 arrangementsand 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?

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.

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. Contact us today for our will drafting services.

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.

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. Howver, 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.

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.

probate and letters of administration

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.

What we will do when applying 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?

Do I need to obtain Probate in NSW?

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.

A grant of probate is not required if the deceased held joint assets which can be transferred automtically by a right of survivorship. This will not be the case if the assets are held as tenants in common.

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.

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.

all about probate...

Probate in general

Where a deceased person has left assets in New South Wales, a grant from the Supreme Court of New South Wales is required in order to deal with those assets and administer the deceased person’s estate. The legal representative of an estate, whether they are an executor or an administrator, is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the will or if there is no will then the rules of intestacy. The type of grant that is made will depend upon whether or not the deceased person left a will and who is applying for a grant.

Where the deceased has left a will, the executor named in the will may apply for a grant of Probate. Where the deceased has left a will but the executor or executors named in the will are unable or unwilling to obtain a grant of Probate, then an interested person such as a beneficiary in the will may apply for a grant of Administration with the Will annexed. Where the deceased has died without leaving a will, then the rules of intestacy will apply. In those circumstances an interested person, such as a person who is entitled under the rules of intestacy, may apply for a grant of Letters of Administration.

Generally, grants in relation to estates allow the executor or administrator to deal with any aspect of the estate that is necessary for the administration. However, in some circumstances, such as when the validity of a will is in dispute, the Court may make a limited grant which allows the administrator to only deal with certain assets or sets a time limit on the administration.

If the deceased lived in another state but left assets in New South Wales, in most cases it will be necessary to obtain a grant in the state where the deceased lived and then obtain a reseal of that grant from the Supreme Court of New South Wales. The executor may be required to apply for a grant of probate in each place the deceased held assets (NSW, Victoria, Queensland etc) or to apply for a reseal of the original grant of Probate, if the deceased held assets outside NSW or overseas.

What does an executor do?

Probate is an order made by the Supreme Court of NSW. When probate is granted, an executor named in the deceased’s Will is entitled to administer the deceased’s estate. This enables the executor to collect the estate assets and distribute the estate in accordance with a deceased person’s will. The executor of an estate is the deceased’s representative and is responsible for:

collecting the deceased’s assets;
paying any of the deceased’s liabilities; and
distributing the deceased’s assets to the beneficiaries, pursuant to the deceased’s will.

Once probate has been granted, the executor can submit this legal document to the various asset holders to collect the deceased’s assets. Likewise the executor can submit the grant of Probate to the debtors of the deceased’s estate.

Delays in seeking probate or letters of administration

If the deceased person died without leaving a will, it may be necessary to obtain a grant of Letters of Administration depending on the nature and value of the estate assets. A grant of Letters of Administration enables the administrator of an estate to collect the assets of the deceased person and distribute the estate. If the deceased died without a Will, the legislation sets out who is entitled to a share of the deceased’s estate.

There is a time limit to apply for a grant of Letters of Administration. The legislation sets out the time frame for applying for a grant of Letters of Administration. According to Part 78 Rule 16 of the Supreme Court Rules 1970, an application for a grant of Letters of Administration should be filed with the Supreme Court of NSW within 6 months of the date the deceased died.

In the event that an application for a grant of Letters of Administration is not lodged with the Court within 6 months of the date of death, the applicant must provide the Court with an explanation for the delay. The applicant is required to lodge an affidavit which explains the reasons for the delay in lodging the application for a grant of Letters of Administration.

This explanation can be included in the Administrator’s Affidavit or in a separate affidavit which explains the delay. We can assist you with preparing this affidavit if you require us to. Applying for a grant of Letters of Administration can be quite complex. Due to the complexity involved, we recommended that you seek legal advice if you wish to make an application for a grant of Letters of Administration. We regularly assist clients to apply for grants of Letters of Administration. In addition we help clients with preparing affidavits explaining reasons for the delay in lodging applications for a grant of Letters of Administration.

What does it cost to obtain a grant of Probate?

If the deceased lived in NSW and held assets in NSW, the executor is required to obtain the grant of Probate from the Supreme Court of NSW. If you are the executor, you are entitled to have your legal costs associated with obtaining Probate paid from the deceased’s estate.

For the work done up to the date the Supreme Court grants probate, legal fees are regulated. The legislation sets out how much lawyers can charge for the costs associated with obtaining the grant of Probate. See Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 for a schedule of the prescribed costs of obtaining a grant of Probate. The prescribed legal costs associated with obtaining the grant of Probate are based on a sliding scale which depends on the value of the estate assets.

Whereas the costs of administering the estate once Probate has been granted are not regulated. There are no prescribed rates which apply to the costs of administering the estate.

Lawyers are required to disclose to all clients their legal fees prior to commencing any work for their clients. However there is an exception to the disclosure requirements.

Costs associated with obtaining a grant of Probate

Obtaining a grant of probate the estate of a deceased person is common work for any solicitor who practises in wills and estates. A grant of probate means that the court has recognised that the will is valid and the estate can be distributed between the beneficiaries.

In New South Wales, the fees a solicitor can charge in relation to obtaining a grant of probate are fixed by state government regulations. The prescribed fees are based on the gross value of the estate assets. Schedule 3 of the Legal Profession Uniform Law Applicaiton Regulations 2015 (NSW) prescribes the maximum fees a solicitor can charge for their work in relation to obtaining a grant of probate. The prescribed fees are detailed on the Supreme Court website: https://www.supremecourt.justice.nsw.gov.au/Pages/current_fees.aspx

The prescribed fees are exclusive of GST. A solicitor is entitled to recover GST by charging an amount of 10% above the prescribed fees.

What do the prescribed fees cover?

The prescribed fees cover the work performed by a solicitor in obtaining a grant of Probate, including:-

Publishing the online notice to apply for probate;
Drafting all relevant court documents including the Summons for Probate, Affidavit of Executor, Grant of Probate and Inventory of Property;
Filing the application for probate with the court;
Responding to any requisitions from the court; and
Filing additional affidavits and materials in response to any requisitions.

It is important to note that the prescribed fees apply only to the costs associated with obtaining the grant of Probate. They do not apply to the solicitor’s work in actually administering the estate, which is usually billed at the solicitor’s hourly rate in accordance with the costs disclosed in their costs agreement.

Prescribed fees generally apply to an application for an ‘uncontested’ grant of probate. Where a solicitor is advising on a disputed probate application, additional charges will usually be incurred because there is more work involved in contested proceedings. These include cases where professional advice is required in relation to such issues as informal wills, rectification, testamentary capacity, duress, undue influence, fraud, lack of knowledge and approval and forgery.

Costs associated with obtaining Letters Of Administration

Applying for a grant of Letters of Administration can be quite complex. We are able to assist you to apply for a grant of Letters of Administration and to administer the estate once a grant has been made.

An application for Letters of Administration is made when the deceased did not have a will.

The purpose of obtaining a grant of Letters of Administration is to enable the administrator to collect the estate assets and distribute the estate in accordance with the legislation. The legislation sets out who is entitled to a share of the deceased’s estate if the deceased died without a will. The relevant application for a grant of Letters of Administration is lodged with the Supreme Court of NSW.

If you are the administrator, you are entitled to have your legal costs associated with obtaining a grant of Letters of Administration paid from the deceased’s estate. Legal fees are regulated for the work done up to the date that the Supreme Court of NSW grants Letters of Administration. There are prescribed costs that lawyers can charge for the costs of obtaining a grant of Letters of Administration. These costs are set out in Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015.

The legal costs associated with obtaining a grant of Letters of Administration are based on a sliding scale. This scale depends on the value of the assets of the deceased. By contrast, the costs of administering the estate once a grant of Letters of Administration has been made are not regulated. This means that there are no prescribed rates which apply to the costs of administering the estate.

Who pays the cost for a grant of probate?

The court filing fee and solicitor’s professional costs associated with obtaining a grant of probate are estate expenses. As such, these costs can be properly reimbursed to the executor from the estate assets prior to distribution to the beneficiaries.

Why having a will is so important.