Wills, Probate and Estate Disputes - An Overview of Estate Law
Date: October 08, 2010
Authors: LAC Lawyers
When someone dies, all their assets are put together and called the “estate”. In most cases the deceased leaves instructions as to how their estate is to be managed or distributed in a Will and its codicils. They appoint Executors who distribute the deceased’s estate in accordance with their wishes, i.e. the Will and its codicils.
The process commences when the Executor applies for a grant of probate from court in which case a notice of application is published prior to the Application being made to court. This notice seeks to provide notice of the intention to apply for the grant of probate in the estate of the deceased and to provide creditors with an opportunity to submit their claims against the estate of the deceased. The entire process takes about a year to complete.
Those who stand to benefit from the bequest of an estate are called the beneficiaries. Some Wills have the effect of creating a trust for the beneficiaries, i.e. that the beneficiaries will only inherit the estate or some benefit from the estate upon the occurrence of some condition, for example, upon attaining a certain age or on the fulfillment of a condition. In these instances, a Trustee who is often also the Executor, will be appointed under the Will, to manage the estate or a portion of the estate until the fulfillment of the condition.
A solicitor will also be able to assist the Executor as to what is required to be done to distribute the assets of the deceased and also advise on the distribution of the estate in accordance with the law. Executors are able to claim for the expenses incurred in the administration of the estate either; when it is provided for in the Will, the beneficiaries agree to pay the Executor or, the Executor makes an application to court. It is also the Executor’s duty to ensure that all estate tax is paid. There are instances where an Executor who fails to perform their duties under the Will may be removed.
On the other hand, when a person dies without leaving a Will, those who believe that they have a right to a share in the estate of a deceased may make an application for the grant of Letters of Administration. This is referred to as the deceased dying intestate, i.e. without leaving a Will. The estate is then distributed in accordance with the law, i.e the Administration and Probate Act 1958 with the guidance of a solicitor.
Therefore it is of the utmost importantance that an Executor, where there is a Will or intending beneficiaries, or intestacies, seek the advise and guidance of solicitors in the administration of a deceased’s estate as soon as practicable.
With the proper guidance, all unnecessary consequences as well as unnecessary cost and expense to the detriment of the beneficiaries can be avoided.
Who can draft a will and the requirements for a valid will
Date: December 01, 2010
Author(s): LAC Lawyers
Wills are important legal documents and we recommend you seek legal assistance in drafting your Will. This is even more pertinent should you have...
Succession Act Claims - Can a step child make a claim on an estate?
Date: November 10, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
Are you a member of a modern family which like many others consists of step-children? If so, do you wonder what your responsibility is as a step-parent to make provision from your Estate to your step-children?
Can my self managed superannuation fund (SMSF) buy property?
Date: September 01, 2010
Author(s): LAC Lawyers
In the past, Australian law with respect to Superannuation did not permit a SMSF to borrow money, or to mortgage the fund’s existing property BUT...
Estate Planning - Self Managed Super Funds
Date: July 12, 2010
Author(s): LAC Lawyers
Retirement is not at the forefront of most working people’s lives but it should be. As Australia’ population is aging superannuation, and saving for retirement is becoming increasingly important.
Wills, Probate & Estate Disputes - Have you been left out of a Will?
Date: June 04, 2010
Author(s): LAC Lawyers
The death of a relative or an intimate is a difficult time for us all. We mourn their loss and grieve for the times that might have been. Then, the Will is read and no one contacts you to discuss your inheritance. You believed your loved one would have made provision for you in their Will and you are shocked to learn that this has not happened. What do you do?
Wills, Probate & Estate Disputes - Will Kits
Date: June 04, 2010
Author(s): LAC Lawyers
Your Will Last Will and Testament (Will) is your final legally binding communication to the world including those you love. You should ensure that expression is tailored to meet the whole of your circumstances.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 3: Types of Testamentary Trusts
Date: January 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The main reason for creating a beneficiary controlled testamentary trust is for protection of the principal beneficiary, particularly in a situation of relationship breakdown of marriage or de facto partnership. With the beneficiary controlled testamentary trust, there is considerable protection of assets from the primary beneficiary’s hostile family members.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 1: The Will
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
A will is a legal document in which the will maker sets out how and to whom his or her personally owned assets are to be distributed after death, the manner in which his or her estate is to be administered and the powers the executors are given.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 2: What is a Testamentary Trust?
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Simply, a testamentary trust is a trust established by a will. Testamentary trusts can be mandatory or optional, fixed or non-fixed, flexible or protective, short or long-term, or charitable or non-charitable.
Deceased Estate Claims - Freedom to do what you want with your estate is limited
Date: May 19, 2009
Author(s): LAC Lawyers
No doubt you’ve heard people say from time to time they think they should be able to do what they like with their wills and how their estate, being their assets, is given once they die. They’ve worked hard all their lives, they’ve amassed a lot, or a little, and now, considering who should get their assets once they ‘go to a better place’, they frequently decide they’ll vent their disapproval of one or more of their children’s behaviour towards them by favouring one over another.
A Will: how should I make one?
Date: March 07, 2009
Author(s): LAC Lawyers
If you want to leave your estate, being your assets which you’ve struggled for years to acquire, to those closest to you, then it’s advisable to make a will. Otherwise your estate will be administered in accordance with the statutory order set out in the Probate and Administration Act.
Making A Good Will
Date: June 01, 2008
Author(s): LAC Lawyers
Some say there are two certainties in life: death and taxes. But if you do not want your ears ringing after you have left this earth, then it is certain that you need to make a Will and to make sure that your Will is clear, precise and properly executed.
Disputing A Will & Family Provision Act Claims
Date: November 28, 2007
Author(s): LAC Lawyers
Two of the more common complaints made in connection with an estate include that the deceased lacked understanding or mental capacity when he or she made the will or that a family member or dependant was "left out of the will".
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
Essential Will Information
Date: November 08, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Many people today make their own wills and this approach is fraught with danger. A will is a written declaration that sets out how a person wants their assets to be distributed to their beneficiaries following death.
The Importance Of A Will
Date: September 26, 2006
Author(s): LAC Lawyers
If you do not make a will and die “intestate” then your estate will be divided according to the law, regardless of your wishes.
The Benefits of Hiring A Lawyer
Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.
Why stay with your lawyer
Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.
Making a claim against an estate
Date: September 23, 2005
Author(s): LAC Lawyers
Sometimes when a family member passes away some of the deceased’s relatives believe that they have not been adequately provided for in the deceased’s will.