Alexander and Associates
Solicitors
Suite 12, Level 10
“Leura” Building
809 Pacific Highway
CHATSWOOD NSW 2067

Tel: (02) 9413.2600

Fax: (02) 9419.8872

On-site parking via Brown Street car park entrance.

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Probate, Wills and Estates

A will is a written legal document that directs how a person's assets will be distributed after their death. Wills are an important part of estate planning, and it is important to have a will if you are concerned about who will receive your property after you die. In fact, making a valid will is the only way you can ensure that your assets will be distributed according to your wishes.

Making a Valid Will

In order for a will to be valid, it must be made in writing, signed and witnessed by two people. In general, to make a will you must also be over the age of 18 (although in some circumstances, minors can also make a will). It is also necessary to have sufficient mental capacity to understand the legal effect of the will. This is often an issue with the elderly. A solicitor can provide advice about what to do in circumstances where there are concerns about someone's capacity to make a will.

A will is valid when it is accepted by a court and put into effect by a grant of probate. If a will has not been made in writing, signed and witnessed by two people, it will not necessarily be enforceable. It will be up to the court to determine whether probate should be granted. If probate is not granted, then the person's assets will be disposed of as if they had not made a will. This highlights the importance of ensuring that a will has been properly prepared.

Although it is possible for persons to prepare their own will, this is generally not advisable. In many cases, homemade wills are not properly drawn up or are unclear as to what was intended. This can result in lengthy legal proceedings, hardship to the family of the deceased and, in some cases, additional tax liability.

It is a good idea to have a solicitor draw up a will. At a very basic level, this will ensure that the will is valid (i.e. properly drawn, signed and witnessed) and that the testator's intentions are clearly expressed so that effect can be given to their wishes. A solicitor can also provide important estate planning advice in this process, including:

• the best way to arrange your affairs;
• possible liability for capital gains tax;
• choosing an executor; and
• legal obligations to provide for certain family members.

Obligations to Provide for Certain Family Members

In some cases, the deceased has an obligation to make adequate provision for certain family members upon their death. If the deceased fails to make adequate provision under their will, it may be possible for family members to make a claim under the Family Provision Act 1982 (NSW). Family members have an opportunity to commence legal proceedings within 18 months after the deceased's death.

Claims are most commonly brought by c urrent or former spouses, de facto spouses, children or step children. However, in some cases grandchildren can also make a claim as well as other persons who have, at some time, been at least partially financially dependant on the deceased and a member of the deceased's household. A solicitor can provide advice about legal obligations to provide for certain family members and in this way minimise the possibility of expensive and divisive litigation.

Executors

The executor is the person named in a will to administer the deceased's estate. More than one person can be named, although it is generally advisable to choose one person and an alternate. Executors ensure that all debts, taxes, funeral and administration expenses are paid, and that assets are distributed to the beneficiaries named in the will.

The executor makes an application to the Probate Registry of the Supreme Court for a grant of probate. The grant of probate confirms that the will is valid and that the executor has the right to administer the estate.

A solicitor can provide detailed information to an executor about their rights and responsibilities, help an executor complete the forms necessary to apply for probate, assist in the identification of the deceased's assets, advise on possible tax liability, and advise about the payment of debts and the distribution of assets.

Where someone has died without a will, there is no executor. Instead, a family member entitled to at least part of the deceased's estate may apply to the Probate Registry of the Supreme Court for “letters of administration”. Once letters of administration have been granted, matters proceed in much the same way as though there had been an executor. However, rather than distributing assets according to the terms of a will, assets are instead distributed according to rules established by statute. A solicitor can provide advice about the distribution of assets in these circumstances.

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