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Wills & Estates

Coutts Lawyers & Conveyancers is a powerful female-founded law firm with a core value system that puts people first. Our reputation as the legal business of choice in New South Wales is recognised by our many awards.

Kaisha Gambell
Q & A with Kaisha Gambell (Senior Associate), and the Head of our Wills & Estates Department

A Will is a legal document that specifies who you want to benefit from your estate, and how you wish your assets to be distributed after you pass away. It is one of the most important legal documents you will ever sign, and making sure that your Will is up-to-date, well-structured and clearly written is key to ensuring that your assets will pass to the persons you wish to benefit. You can also use your will to nominate a guardian for your minor children or to record your funeral wishes. Having a valid will meets two goals – it ensures that your wishes are upheld and makes things easier for your family.

For a Will to be considered valid in New South Wales, it must be:

  • In writing;
  • Signed by the will-maker (or by a person the will-maker has directed to sign on their behalf if they are physically unable to sign it themselves); and
  • Witnessed by at least two independent people who are present at the same time the will-maker signs the document. The witnesses must also sign the will to confirm that they were present and witnessed it.

When someone passes away without a “valid Will” in place, they are said to have “died intestate”. What this means is that their assets will pass to a class of beneficiaries that have been pre-determined by the law in New South Wales, called “the rules of intestacy”.

Under the rules of intestacy, there is a statutory order of relatives created by the law to achieve a “blanket solution” to what the person who passed away without the Will might have done in their lifetime.

You must exhaust every relative who fits within the category before moving on to the next category and once an eligible relative is found, the process stops. If there is more than one relative in a category, then these relatives become equal beneficiaries of the estate.

The statutory order is as follows:

  1. Spouse, including a married or de-facto spouse and same-sex relationships.
  2. Children, including biological and formally adopted children but not step-children.
  3. Parents.
  4. Brothers and sisters.
  5. Grandparents.
  6. Aunts and Uncles.
  7. Cousins.

The deceased persons assets will only pass to the New South Wales Government if there are no eligible relatives of the deceased person.

The situation becomes much more complicated when the person who passed away leaves both a spouse and children who are not the biological children of their spouse, such as in a blended family scenario. In this situation, the law attempts to divide the estate assets between the spouse and the children, but it might not be exactly as the deceased person had wanted it to be.

This statutory order is subject to modification where the deceased person is an Indigenous Australian and the estate will be divided in accordance with the laws, customs and traditions of the deceased persons Indigenous community.

A Will is a very important document to have. A Will states the way you wish your assets and liabilities to be distributed after your death. If you don’t have a Will, you don’t have any say about how your estate is distributed.

If you’re over the age of 18 years and have the necessary capacity, you are eligible to make a Will. However, the court can make an order authorising a minor to make, alter or revoke a Will in certain circumstances.

Your Will would only go to the Government in the event that the 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.

The person or persons named in the Will as the Executors are responsible for applying for a Grant of Probate. If the first named Executor has passed away or is unable to act as the Executor because they are unwell, then the person named as the substitute or alternate Executor will be able to make the application.

A Power of Attorney is a legal document that 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.

Both the General Power of Attorney and the Enduring Power of Attorney will authorise another person (the Attorney) to act on your behalf and make legal, financial and property related decisions for you. The key difference between the two is that a General Power of Attorney will end if you die or lose the mental capacity to make your own decisions, whereas the Enduring Power of Attorney will continue to remain valid during your lifetime even if you lose the ability to make your own decisions.

You should carefully consider your individual circumstances and needs when choosing whether to set up a General Power of Attorney or Enduring Power of Attorney.

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

An Appointment of Enduring Guardian is a legal document that allows you to appoint another person (or persons) to make decisions about your lifestyle, health and medical treatments on your behalf, if you no longer have the mental capacity to make these decisions for yourself. Someone who is your Guardian is able to help decide where you live, arrange care services on your behalf (such as in-home care) and give consent on your behalf for medical and dental treatment. The document also allows you to give any directions you have concerning your end-of-life treatment if you feel strongly about this decision.

An Appointment of Enduring Guardian will only come into effect at any time you have lost the mental capacity to make your own decisions and could be temporary or permanent depending on the period of incapacity.

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

A family provision claim is an application to the Supreme Court of New South Wales for a share or a larger share from the estate of a deceased person.

A family provision claim can only be made by an “eligible person” under section 57 of the Succession Act 2006 (NSW).

The following are ”eligible persons”:

  1. A husband or wife of the deceased person;
  2. A de-facto partner of the deceased person;
  3. A former husband or wife of the deceased person;
  4. A child of the deceased person (including adopted and step-children);
  5. A person who at any time, was wholly or partially dependent on the deceased person and Who was either a grandchild or member of the household that the deceased person lived; or
  6. A person with whom the deceased person lived with in a close personal relationship.

If the eligible person is under the age of 18 years, then the family provision claim may be made by someone else on their behalf.

The bank account of a deceased family member will be automatically frozen from the time that the bank is notified of their death.

If the bank account of a deceased family member was held in their sole name, then the process to close the account will depend on how much money remains in the account and the terms and conditions of the particular bank or credit union.

Some banks and credit unions will be satisfied to release the money held in the bank account to the Executor of the estate upon being provided with a copy of the will, death certificate and suitable identification from the Executor. However, this is normally only the case where the amount of money held in the account is less than $50,000.00 or some other threshold set by the bank or credit union.

Where the amount of money remaining in the bank account is over the bank’s threshold, the bank will require the Executor or next of kin to provide a copy of the Grant of Probate or Letters of Administration from the Supreme Court of New South Wales before the funds are released and the account is closed.

If the deceased person held the bank account jointly with another person who is still living, then the bank account will not automatically freeze and will transfer into the sole name of the surviving account holder. Normally the bank will require the surviving account holder to provide a copy of the death certificate to change the name on the account.