Deceased Estates, wills and succession
It can be difficult to decide who to pick as your attorney or Enduring Guardian, even harder to decide how you should dispose of your assets on death. This is particularly true if most of your assets are not in your name but are held by a family trust, a corporate entity or in a self managed superannuation fund. In this case, what you own may only be the shares in the company or a beneficial entitlement to a distribution from the trust. Or you might be sole director of the company that holds most of your assets. What happens when you pass away? Who becomes director in your place? How? A Will can be straightforward and relatively easy or it may involve extensive financial planning with an accountant and lawyer. The reality is that each of us have different needs.
Much harder is the situation where a significant other close to you has died and you are the Executor named in the Will. What does this mean? Who do you contact? When do you do this? Do you need to consult the family? This can all be overwhelming so you need to deal with this step by step. As the Executor, you stand in the shoes of the deceased and act in their place. Your role is guided by the Will. You then will be the person who makes the funeral arrangements, notifies Centrelink or the employer and gathers the financial documents that need to be dealt with. You are quite likely to consult with close family but the final decision will be yours. When you are ready to take the next step, consult us.
Estate planning ensures surviving family members receive the assets appropriate to each designated person from a deceased Estate. Our experienced lawyers are well educated in the area of Wills and Estates in order to advise you on financial planning including the appropriate investment vehicle, testamentary trusts and the appropriate tax structures, if required.
We are skilled in advising and drafting your Will (ranging from a simple Will to a complex Will incorporating a testamentary trust), an Enduring Power of Attorney and/or Appointment of Enduring Guardian.
A Will is sometimes simple but always remains an important document. It is the voice that speaks for the deceased individual directing their wishes upon death. We act on behalf of Executors of deceased Estates in obtaining a grant of Probate (in it’s various forms) and Administrators (in situations where there is no Will) in the issue of a grant of Letters of Administration.
Sometimes family disputes arise because there is no Will or because a family member or dependant of the deceased believes they have not received their proper entitlement. These types of disputes require careful handling before it escalates into an uncompromising dispute that can tear a family apart and/or significantly erode the assets of the Estate available to beneficiaries.
Succession Act 2006
The Succession Act 2006 determines how Wills and Estates are to be handled in New South Wales. The Act also contemplates claims for provision by eligible claimants against the deceased Estate provided the requirements in the legislation are met. In dealing with such a claim the Executor or Administrator must ensure he/she/they are following the law. Accordingly, it is usually best to consult with a lawyer who has specific experience in Wills and Estates.
When a person dies without a valid 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. This may leave untouched the practical issues of continued operation of the company. In turn, this goes to the value of the company and hence the value of those shares.
Litigation: 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, undue influence) or perhaps the testamentary 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. These matters need to be handled with care to preserve the assets of the Estate balanced against the need to finalise the Estate and allow grieving family members to move forward.
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 both prosecute or defend any such claim on your behalf.