We understand that dealing with a deceased estate is one of the more difficult challenges in life.
From mountains of paperwork to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life.
Let our estate lawyers help you with:
- Interpreting the Will of the deceased in terms of estate laws
- Advising executors and trustees in relation to their duties and rights
- Notifying government bodies including Centrelink and Veterans Affairs
- Applying for Probate of the Will in the Supreme Court
- Dealing with intestacy (if there is no Will)
- Applying for letters of administration (if the Will is deemed invalid or is absent)
- Identifying estate assets and liabilities
- Obtaining valuations of estate property
- Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans and insurance payouts
- Selling or transferring estate property including estate auctions
- Paying estate debts including mortgages, funeral costs and testamentary expenses
- Advising in regard to family and testamentary trusts
- Administering trust funds
- Distributing bequests and inheritances to beneficiaries
- Organising information for estate tax returns
- Family mediation and negotiation
- Contesting wills and defending estate litigation in the Supreme Court
Those last two options tend to arise where you or someone else has been left out of a Will or have been unfairly treated in terms of the amount of your inheritance. In those circumstances, you or someone else may be able to make a claim against the estate.
Challenging a Will
The types of people who may be entitled to claim include people who had a relationship with the deceased such as wife or husband, de facto or same sex partner, former spouse or former de facto partner, child or step-child or grandchild, parent of a child of the deceased, parent or sibling, someone who was financially dependent on the deceased or carer of the deceased. This is a very general guide only so please contact us to discuss your particular circumstances.
You have only 12 months from the date of death to make a claim. In certain circumstances, we might be able to obtain an extension of the time limit, so please contact us to discuss your situation.
You can also challenge a Will if you believe that the Will is a forgery or if the person lacked the mental capacity to make the Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.
Process for making a claim
If you want to make a claim, we can assess your claim and discuss the particular circumstances that may be relevant. If it’s worth continuing, we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved, we can prepare and file documents with the Court to initiate proceedings. We can still negotiate and, in some cases, mediation will be required by the Court.
Failing all else, we will proceed to hearing where the evidence will be presented and the Judge will make a final decision. We have a great deal of experience in this area and are well-equipped to guide you and strongly advance your claim.
Talk to our friendly Probate & Deceased Estates team today
Probate and Deceased Estate Law FAQs
Depending on your circumstances, you may have legal remedies available to you. Some of the legal avenues to challenge a Will include challenging the validity of the Will or seeking an award on the basis that you unfairly received inadequate or no provision from an estate. To answer this question our deceased estate solicitors will have to meet with you to discuss the circumstances of your claim.
When the deceased party has no recorded Will, this is referred to as “Intestate”.
Intestacy laws are different for each state, but in NSW how a deceased estate is distributed depends on what family members the deceased has left.
Children, spouses, siblings, and parents can all influence how the estate is divided.
The law in this area is complex. It is recommended that you speak to a deceased estate solicitor.
It depends on the parties involved and their willingness to settle outside of court. Sometimes, when the parties to a dispute cannot reach agreement, court is inevitable. We regularly advocate a cost-benefit analysis to make sure that money is not spent chasing an adverse result. Settling a dispute outside of court often has its advantages in that the parties to the dispute can control the outcome, as opposed to a judge making a decision which is outside of the parties’ control.
Wills do not expire, however problems can arise if you don’t update your Will regularly. For example, you may make a gift to someone who predeceases you or a former spouse, you may gift an asset to someone then sell that asset before your death, or a person may be born after your Will is made and your Will may not leave them any part of your estate.
If the terms of the Will can be carried out, then the Will is valid and binding.
If a Will has not been updated for some time, and certain parties (like children or spouses) feel they have been left inadequate financial provisions, the Will can be contested.
You should never edit, amend, alter or write on your Will in any way after it has been made. Any alteration to your Will could have undesirable flow on consequences and there is potential for your alterations to have the effect of revoking your Will entirely.
We generally recommend making a new Will. We want to make sure that the cost of making a new Will is not prohibitive, so our standard Wills cost only $99 each.
The Will fails and cannot be admitted to probate. In that event, the next appropriate persons can apply for Letters of Administration with the Will annexed.
There is usually some complexity with that application, both in the form of the application as well as who or whom should apply to be administrator/s of the estate.
Under rule 78.16 of the Supreme Court Rules 1970 (NSW), if an executor has not filed for a grant of probate within six months from the date of death then the executor must file an affidavit explaining the delay.