Wills & Estates

Lawyers working in the area of estate and succession law help their clients to plan for the future by preparing wills, powers of attorney, and other legal documents. They also assist executors and family members with the administration of an estate after a person has passed away. 

We work closely with our clients to understand their individual circumstances and wishes, and to provide tailored advice and support. We stay aware of recent developments in wills and estates law, such as changes to the way that digital assets are treated, and the introduction of new legislation relating to family provision claims.

Preparing a Will

A Will should provide clarity for your family and minimise the potential for disputes to arise after you die. Your Will should appoint one or more executors who will be responsible for looking after your assets and administering your estate. Your Will should also name your beneficiaries and provide direction on how your assets will be left or divided between them.

You can also set out your wishes for funeral arrangements, appoint guardians for your children, and create testamentary trusts under your Will as a way of providing for vulnerable or minor children. We can explain the utility of a testamentary trust and help you decide if this might be suitable in your circumstances.

Considerations when making your Will include:

  • The type of assets you own and how they are held.
  • Who you would like to nominate as your executor/s and whether they will likely have the ability, capacity, and willingness to act in that role.
  • The circumstances of your beneficiaries and how your assets should be divided among them.
  • Who might be a suitable guardian to appoint to look after your children if you die before they are old enough to look after themselves.
  • Whether you have children from a previous relationship and, if so, what provisions will be made for those children. 
  • Whether your partner has children from a previous relationship and the provision to be made for them.
  • Whether there are certain individuals you wish to exclude as beneficiaries who might be eligible to make a claim on your estate after you die.

Estate Administration

The administration of a deceased estate in New South Wales is governed by the Succession Act 2006 and the Supreme Court Rules 1970.

If the deceased person left a Will, the executor named in the Will is responsible for the administration of the deceased estate. 

The executor will usually need to apply for a Grant of Probate from the Supreme Court. This is a legal document that confirms the validity of the Will and authorises the executor to administer the estate. The executor must then identify all the assets and liabilities of the deceased person’s estate. This may involve reviewing bank statements, property deeds, and other financial documents. The executor will also need to notify any creditors of the deceased person’s estate and settle any outstanding debts. Once all debts have been paid, the executor can distribute the estate to the beneficiaries named in the Will.

The administration of a deceased estate can be a complex and time-consuming process. A lawyer can help with this process and ensure that the executor is carrying out their role correctly and in accordance with their legal obligations.

Estate Disputes

Occasionally, a dispute may arise if there are concerns over the validity of a deceased person’s Will. For example, if it is suspected that the Will was forged or signed under duress, it may be challenged in court.

More commonly, however, estate disputes focus on disagreements between family members, beneficiaries or other interested parties over the distribution of a deceased person’s assets. For example, if one beneficiary receives a larger share of the estate than others, the proposed distribution may be contested if the aggrieved beneficiary is eligible to do so.

Under the Succession Act 2006, certain individuals (such as spouses, children or dependants) are entitled to make a claim for provision from a deceased person’s estate if they feel that they have not been adequately provided for. In determining a claim, the following factors, although not exhaustive, might be considered:

  • the relationship between the claimant and the deceased 
  • the size of the estate and any competing claims to the estate 
  • the claimant’s income, lifestyle, medical needs, and educational requirements
  • the needs of other beneficiaries of the estate
  • any interdependence between the claimant and the deceased

We can help you if you wish to pursue a family provision claim or if you are the executor of an estate against which a claim has been made. Most claims can be negotiated between the parties and settled without having to go to court. We can also provide guidance on the legal options available to resolve other estate disputes and help you navigate the process.

If you need help, contact [email protected] or call 0401 451 322 for expert legal advice.