Wills & Estates

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A will states the way you wish your assets and liabilities to be distributed after your death.

Anyone over the age of 18 years who has the necessary capacity can make a will. However the court can make an order authorising a minor to make, alter or revoke a will in certain circumstances.

Dying without a will is referred to as an “intestate estate” or “intestacy”. A partial intestacy can occur where the deceased has left a will which did not dispose of their entire estate. Assets within an intestate estate will be distributed according to the rules of intestacy under the Succession Act rather than according to any wishes you may have.

Only in the event that a deceased does not make a will and does not have any family.

An executor is the person appointed in a will responsible for carrying out your wishes and administering your estate when you are deceased. The executor locates the will, pays all debts and liabilities, identifies and collects all assets of the estate and distributes your assets in accordance with your will.

Probate is a court order confirming that a will is valid. Following a determination by the Supreme Court that the will is valid, probate is granted in favour of the executor. The grant of probate gives the executor legal authority to deal with the assets of the estate in accordance with the wishes of the deceased.

Whether you require a grant of probate depends on the particular assets that make up the estate and their value.

A power of attorney is a legal document which allows an individual (known as the principal) to appoint another person (known as the attorney) to make decisions about your financial property and manage your financial affairs. An enduring guardianship is a legal document that allows you to appoint another person to make decisions on your behalf regarding your medical, health and lifestyle decisions when you lose mental capacity.

A general power of attorney will terminate if the principal loses mental capacity and an enduring power of attorney continues to operate after the principal has lost mental capacity.

Yes, however you must state whether your attorneys are to be appointed jointly or whether they can act independently of each other.

Yes, however you must state whether your guardians are to be appointed jointly or whether they can act independently of each other.

An application for provision (a benefit) out of a deceased persons estate where there has been no provision or inadequate provision made for the applicant.

Yes, provided that you are an eligible person under the Succession Act and the application is made within 12 months from the date of death.

Kaisha Gambell
Q & A with Kaisha Gambell (Senior Associate), Wills & Estates

The clients were married, and each had children from a previous relationship. They owned property and bank accounts together but wanted to make a will that primarily benefited their children from the previous marriage.

The way the clients owned their main residence was important to the estate plan and advice. The clients were not sure how the property was held, so we did a title search during the appointment and identified that the client’s owned their main residence as joint tenants.

We advised the client that they needed to change the tenancy of their main residence from joint tenants to tenants in common in equal shares for their share of the main residence to form part of their estate and able to be gifted by will.  We advised the client of the form required to be filed with the NSW Land Registry Services to sever the joint tenancy and explained that there was an exemption on stamp duty in this instance. We advised the client of the filing fee required and assisted the client to obtain the consent of their mortgaging bank.

Once the main residence was owned in the correct way, we gave advice to the client to prepare a new will that gifted their share of the main residence to their children and granted a right to one another to continue to occupy the main residence for the remainder of their life. This way, the clients were able to ensure that their children would receive the benefit of their share in the property, but they could also ensure that one another would have stable accommodation for their lifetime.

We gave advice to the clients that they need to consider the way that they record their ownership of any future properties they may purchase and to update their will if their wishes change in the future.