When a loved one dies, there are always financial, ownership and debt issues to be resolved. We call these Estate matters. We offer a comprehensive service to assist to the extent that each particular family needs or prefers.
We can assist and provide advice in the following areas:
- Estate Administration
- Obtaining Probate
- Letters of Administration
- Estate Litigation
- Family Protection Act claims
- Testamentary Promises claims
- Assistance to Executors
- Assistance to Beneficiaries
We can assist with all aspects of Estate Administration. Amongst other aspects we can:
- Identify the assets and liabilities of the Estate
- Assist with closing bank accounts, collecting in proceeds from investments and insurance policies
- Facilitating the sale of Estate assets
- Paying Estate liabilities
- Liaising with beneficiaries and making distributions to them
Included with all Estate Administration matters are the following legal terms:
- Letters of Administration
In most Estates, when a person dies leaving a Will, an application is made to the High Court for a Grant of Probate. The Court sealed grant (called Probate) gives the Executors (those appointed in the Will to administer the Estate) the authority to deal with the assets of the Estate in accordance with the terms of the Will. Probate is required when the assets include land and/or sizable monetary assets.
We can assist with obtaining the Grant of Probate.
The Executors are required to collect in the assets of the Estate and have the responsibility of paying all Estate debts from those assets. Estate liabilities must be paid or allowed for before there can be a distribution to the beneficiaries under the Will.
What is an Intestacy?
If you die without a Will your Estate is said to be intestate and hence an intestacy arises. In this event, the Administration Act directs what is to happen to your property and assets.
What are Letters of Administration?
Where there is an intestacy, the Administration Act requires an application by the next of kin of the deceased to be made to the High Court for an order to administer the assets of the Estate. The order made is called "Letters of Administration". The Court Order appoints an Administrator who must administer the Estate in accordance with the provisions of the Administration Act. The Administrator has no discretion to vary the provisions of the Act regarding distribution of assets to family members.
We can provide advice as to the provisions of the Administration Act as well as make the application to the High Court for Letters of Administration.
If an asset is owned jointly by two or more persons (for example: land/ motor vehicles/ bank accounts) and one owner dies then, by the law of survivorship, the ownership of the asset passes to the surviving owners (irrespective of what the deceased's Will may have provided). There are documents to be completed to implement this change of ownership but it occurs without the need for Probate or Letters of Administration.
We can assist with providing advice when the issue of survivorship arises.
When a loved one dies, either leaving a Will or without a Will, there may be those who wish to "contest" or "challenge" the Estate on the basis that they have been unfairly excluded as a beneficiary (either partially or fully). This can result in Court proceedings (called "litigation") or, at least, the threat of litigation.
The categories where this may affect you are:
- As a claimant under the Family Protection Act;
- As a claimant under the Law Reform (Testamentary Promises) Act;
- As an Executor in the administration of the Estate;
- As a beneficiary where a claim has been notified.
We can provide advice if you have been served with these proceedings or, in the event that you wish to take advice as to whether you are entitled to bring these type of proceedings.
The Family Protection Act entitles immediate family members of the deceased, including de facto partners (both past and present), and in some circumstances the partner's children, to bring a claim to the Court seeking to have the terms of the Will changed.
To succeed, the claimant must satisfy the Court that the deceased had a moral duty to provide appropriately for the claimant in the Will and that the provisions in the Will did not adequately satisfy that moral duty. The extent of the moral duty depends upon the particular family circumstances.
We can assist in providing legal advice if you wish to consider making a claim under the Family Protection Act or, if you have been served with a claim under the Act we can provide advice also.
"I'll take care of you in my Will"
"You've been so good to me, I'll leave you my house in my Will "
Pursuant to the Law Reform (Testamentary Promises) Act, if a person rendered services to, or performed work for, the deceased (during the deceased's lifetime) and a promise was made to reward that person by way of a provision in the deceased's Will, then that person may bring a claim against the Estate of the deceased where that promise has not resulted in a legacy in the Will.
However, generally such services would not include services that arise out of the natural consequences of life within a close family group.
Regardless of the dollar amount or the property actually promised by the deceased, the Court has a discretion to award an amount which the Court considers is reasonable in all the circumstances.
We can assist in providing legal advice in respect of bringing a claim under this Act or, if you have been served with a claim under the Act we can assist in providing legal advice in respect of a defence to that claim.
As an Executor, you must remain neutral if there is any proposed Estate Litigation. You may be called upon to provide financial details regarding the Estate. The Court will require you to abide by its decisions. We can provide advice to assist you throughout this process.
BEING A BENEFICIARY WHEN A CLAIM IS NOTIFIED
If you are a Beneficiary and there is a claim against the estate, there is nothing that you need to do until you are served with Court Proceedings. At that stage you will need a lawyer to advise you as to your rights and obligations.
However, you may consider it prudent to instruct a lawyer at the stage that you learn that a person intends to make a claim against the Estate as, frequently, there will be negotiations before any Proceedings are filed with the Court. Often those negotiations result in a Deed of family Arrangement that settles the claim and therefore avoids the need for Court Proceedings.