We are experienced probate and estate planning lawyers. We can assist with:
- Preparing a Will and estate plan that is tailored to your individual circumstances.
- Preparing a Power of Attorney (enduring or general) and Appointment of Enduring Guardian to ensure that your health, legal, and financial affairs can be dealt with appropriately by somebody you trust if you are unwell or incapacitated.
- Helping executors handle the steps involved in their role such as applying for Probate to the Supreme Court of New South Wales and identifying and distributing the assets of the estate according to the deceased’s Will.
- Dealing with estates where a Will was never signed, was not valid or cannot be found. An application for letters of administration to the Supreme Court of New South Wales is required in these situations.
- Advising under circumstances where a person believes they have an entitlement to the estate such as a Family Provision Act claim.
Estate Planning
Estate planning involves developing a strategy to distribute your assets after you die and nominating responsible people to carry out your wishes. Proper estate planning will minimise uncertainties with arranging probate, a critical step in releasing your assets. Financial dependents, tax implications and jointly owned properties are some of the many factors that need to be considered.
Superannuation, usually a valuable part of your estate, has its own set of rules and regulations around distributing to your beneficiaries, and forms an integral part of your estate planning.
Business succession planning helps to ensure that appropriate arrangements are in place for business and company interests, whether those interests are to be wound up or handed down through generations.
Effective estate planning also involves consideration of your family dynamics and taking steps to minimise the potential for family provision claims and disputes arising after you die.
Estate Administration – Executors and Administrators
Following the loss of a family member or close friend, you may be a potential beneficiary to the estate or appointed as an executor. An executor is the person appointed under a Will to deal with a deceased person’s affairs. An administrator has a similar role, however, must be appointed by the court through letters of administration if a person dies intestate (without a Will) or an executor appointed in a Will is unable or unwilling to carry out the role.
Executors and administrators have significant legal responsibilities. They will need to identify, secure, and protect estate assets, pay estate debts and distribute the proceeds of the estate in accordance with the Will or the laws of intestacy. During the administration process, they will often deal with accountants, financial institutions, real estate agents and brokers, usually under the guidance of an estate lawyer.
Executors and administrators often need to consider matters outside their area of expertise, such as the tax implications on the sale or transfer of assets, the order of payment of debts (particularly in the case of an insolvent estate), the preparation of estate tax returns and the potential for a family provision claim to be made.
C J Boyd Solicitors can assist you to fulfil your role and navigate your rights and responsibilities when carrying out your duties as executor or administrator.
Probate
An executor may need to apply for a grant of probate through the Supreme Court before administering an estate. The granting of probate “proves” the Will of the deceased and authorises the executor to deal with the estate. The notice, application and supporting documents are filed with the court and, if no requisitions are raised, probate is granted. Once granted, the executor may deal with the assets and start the process of administering the estate in accordance with the Will.
In some circumstances, a grant of probate may not be necessary to deal with the deceased’s assets and administer the estate and we can advise you accordingly.
Family Provision Claims
A family provision claim may be made by an eligible person seeking a share or greater share from an estate. An applicant must prove that the deceased failed to make adequate provision for his or her proper maintenance, education, and advancement in life.
Eligibility criteria varies between each jurisdiction but generally includes a spouse, former spouse, de facto partner, child of the deceased, or certain individuals who were in a close personal relationship with the deceased or who were dependent on the deceased at the time of his or her death. A lawyer can advise you regarding eligibility. Strict timeframes apply for making such claims and it is important to obtain legal advice promptly.
An executor may need to defend a family provision claim made against the estate and should obtain legal advice in these circumstances. Family provision claims and estate disputes can be both complex and contentious. Although most settle out of court, early legal guidance is important.
If you need any assistance, contact one of our lawyers at [email protected] or call 02 9279 1179 for a no-obligation discussion and for expert legal advice.