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Professional Will and Estate Lawyers Sydney

There are only two things in life that are certain…death and taxes. Regardless of how morbid the topic, it is essential that you prepare for your death by having an estate¬†plan. This not only gives you peace of mind about how your affairs will be managed once you’re gone, but it will also greatly assist your loved ones during one of the most difficult times in their life.¬†

Wills and estates are governed by the estate planning laws of each state and territory in Australia. In NSW, estate planning consists of:

  • Wills
  • Power of Attorney
  • Enduring Guardianship¬†

The laws governing estate planning in NSW  are the Succession Act 2006 (NSW), Power of Attorney Act 2003 (NSW) and the Guardianship Act 1987 (NSW). Estate planning can be extremely complicated, especially where family trusts, businesses, mixed families and overseas wills or assets are involved. Make sure your wishes are carried out. Contact our law firm for a free initial consultation from one of our estate planning lawyers. 

Why do I need a good Will and Estate Lawyer?

Hiring a good Estate Lawyer means all your T‚Äôs are crossed and I‚Äôs are dotted. Don’t leave it to chance – Jameson Law’s Estate Lawyers will protect your family‚Äôs well-being and your final wishes even when you‚Äôre no longer around to direct things.

Our lawyers are proficient and have a dedicated team of legal writers behind them. This ensures your will is accurate, valid and covers anything that means everything to you!

What information do you need when putting together your will?

  • Vehicles:¬†The model, year, and registration details of any vehicles you own; including motor vehicles, caravans, boats, and/or motorbikes
  • Shares and¬†Investments:¬†All Security Reference Numbers ‚Äď these can be found on dividend statements
  • Funeral Arrangements:¬†Details of any prepaid funeral plan/policy and/or funeral bond and/or¬†prepaid monumental works
  • Bank Accounts and Term Deposits:¬†Recent bank account statement along with account numbers
  • Superannuation:¬†The name(s) of your Fund/s and your Member number(s)
  • Insurance:¬†The company names and reference numbers relating to your life or life or funeral policies
  • Overseas Assets:¬†Details regarding any international assets you have
  • Other Assets:¬†The trust deeds, partnership agreements, and/or articles of association relating to private companies, partnerships, and/or family trusts AND¬†Details of any digital assets such as online betting accounts
  • Liabilities:¬†Details of any outstanding liabilities, such as a home loan or other loans, including loans to family members.

What considerations do you need to make?

  • House:¬†
    • Whether your house is mortgaged and to whom
    • The location of the Certificate of Title and what the title reference is
    • Whether you own your property with one or more other people as either Tenants in Common or Joint Tenants
  • Vehicles
    • Whether there are any loans against any of your vehicles, and to whom these loans are owed.
  • Shares/Investments
    • Whether the shares are held jointly or individually and where your capital gains records are held
  • Funeral Arrangements
    • Instructions with respect to your burial or cremation
  • Superannuation
    • Whether there are named beneficiaries and/or whether you have a binding nomination
  • Insurance
    • Whether you have any beneficiaries nominated in relation to your funeral and/or life policies
  • Furniture and Effects
    • The estimated value of these items
    • Any specific items that might need a separate mention in your Will (especially those of a higher value and/or of sentimental value, for example, original paintings and/or service medals)
  • Guardianship for Children under 18 years of age
    • Your wishes in relation to the guardianship of any children under 18 years of age

Wills

A will is a testamentary document or instruction manual about how your affairs and your body are to be dealt with upon your death.  

Many people look to cost-effective solutions such as do-it-yourself will kits. While they may be cost-effective in the short term, they can complicate the process once you pass away if they are completed incorrectly. These complications can result in your deceased estate (your estate once you die) being used to pay for legal costs when someone challenges the will. Solicitors are governed by professional standards legislation and are required to keep up to date with changes in legislation and processes that you may be unaware of.

To avoid the pitfalls of writing your own will or using a will kit, contact our experienced wills team for a free initial consultation. 

A will states:

  • How your assets (e.g. bank accounts, personal property, real property, shares, etc) will be distributed between your beneficiaries¬†
  • How your debts will be managed
  • If you have children under the age of 18, how they will be cared for¬†
  • How your remains will be dealt with e.g. burial, cremation, donated to scientific research, etc.
  • The executor i.e. the person responsible for your estate administration¬†once you pass away. It is up to you who you want to be the executor of your will. You should tell your executor where they can obtain a copy of the will upon your death so they don’t have to go looking for it.

If you wish to itemise your personal property (e.g. jewellery, family heirlooms, vehicles, etc), stating who will receive it upon your death, you should attach a codicil to your will.

Your superannuation is dealt with differently. It has two insurance policies built into it in the event of personal injury or death (life insurance). When you establish a superannuation account, you nominate a beneficiary or beneficiaries. Your executor will be responsible for notifying your superannuation provider of your death and providing them with a copy of your death certificate. If you are unsure whether you have nominated a beneficiary, you should contact your superannuation provider. If you have multiple accounts, it may be worth rolling them over into one account. However, you should discuss this with your financial planner.

If you have property or estate planning documents overseas or interstate, it is essential that you receive legal advice before making your will. Each state and territory in Australia as well as other countries, have their own estate laws. This can have a significant impact on your estate administration upon your death.

It is recommended that you leave your original will with your solicitor or keep it in a fireproof safe to prevent its loss or destruction.

Testamentary Trusts

A testamentary trust is a trust established through the terms set out in your will. Your will can have a single or multiple testamentary trusts.  It is not effective until your death.

Advantages:

  • The assets are owned by one person (the trustee), but the benefit derived from them goes to the nominated beneficiaries. That means the assets are protected from adverse action against the beneficiary e.g. bankruptcy, divorce, personal lawsuits from high-risk occupations (e.g. as a doctor, lawyer, etc), etc.
  • Taxation. A testamentary trust¬†does not pay personal income tax. Any income, fringe benefits or franked dividends that may be accrued by the trust is distributed equally among the beneficiaries of that trust.¬†
  • If your beneficiary receives an Australian pension, testamentary trusts are not taken into consideration when determining a person’s eligibility for the pension.
  • You can nominate the trustee. A trustee can be a family member, friend or professional trustee.
  • You can set the expiration date of the trust. A testamentary trust¬†can last up to 80 years. This is particularly beneficial if you have a child with ongoing needs.
  • If you are unsure whether you want to establish a testamentary trust, you can include a clause in your will giving discretion to the executor of your will to establish one after your death.¬†

Disadvantages:

  • The ongoing costs associated with a testamentary trust¬†can be prohibitive, especially if the trustee is a professional trustee hired to administer the trust. Ongoing costs include annual trust tax returns as well as the fee payable to the professional trustee.¬†
  • The trustee has total control over the trust and distribution of income earned from the trust. Assets of the trust can be borrowed, used as security or removed from the trust by the trustee. It is essential that you nominate a trustee that can be trusted 100%.
  • Assets may be subject to Stamp Duty or Capital Gains Tax. The Australian taxation system is complex and it is recommended that you seek financial advice from a licenced¬†financial planner to make sure this is the best decision for you and your estate.¬†
  • The assets of a family trust do not roll over to the testamentary trust. If you wish to include your family assets in a testamentary trust, you will need to dissolve the family trust to create the testamentary trust. Before making this decision, you should speak with your financial planner.

What makes a will valid?

For a will to be considered valid in NSW, it must:

  • Be in writing (typed or handwritten – handwritten must be in legible writing).
  • Signed by the will-maker (testator).
  • When you sign your will, it must be witnessed by two people and they have to sign it as witnesses at the time that you sign it.
  • When you sign your will, you should sign the bottom of each page and initial any amendments that have been made.
  • You should not be a witness to the will signing if you are a beneficiary. This can cause issues if the will is contested and you may lose any benefit from the will.
  • Anyone signing the will should use the same pen to avoid accusations of tampering.

Deceased Estates

The passing of a loved one can be a difficult time. Not only do you need to navigate your emotions, you also have to deal with the deceased person’s estate. In Australia, wills and estate law can be complex, especially when the assets of the deceased are in another state or country. Let us assist you to navigate the estate administration process. Contact our office for a free initial consultation.

In NSW, deceased estate administration is dealt with under the Succession Act 2006 (NSW), the common law and equity. Estate matters are heard by the Supreme Court of New South Wales.

What is the deceased estate?

The deceased estate is made up of all the assets of the estate and liabilities (debts). These include:

  • bank accounts
  • building society accounts
  • superannuation
  • income tax
  • real estate
  • insurance policies
  • debts
  • motor vehicles
  • artworks¬†
  • collectibles

Process for the administration of the estate with a valid Will:

  1. Contact Jameson law for legal advice.
  2. Locate a copy of the deceased person’s Last Will and Testament. Wills are not registered. However, if you are unable to locate it, your solicitor may be able to assist by reaching out to other legal practitioners to see if they have it.¬†
  3. Advertise a notice of your intention to apply for a grant of probate. This is completed using the Online Registry. You must wait 14 days after advertising your intention before you can file your summons for probate. This gives creditors the opportunity to claim on the estate for any outstanding debts owed to them and provides family members with an opportunity to make a family provisions claim. 
  4. Complete and file the summons for probate, 
  5. Draft and file the grant of probate and inventory of property 
  6. Prepare and file the Affidavit of the Executor and attach a copy of the will and the inventory of property
  7. File your application with the Supreme Court of NSW along with a self-addressed envelope. DO NOT file the original copy of the will as you will not get it back. Make sure you have a copy of the application and give your lawyer a copy if you file it yourself. 
  8. Once probate has been granted, it will be sent to you in the self-addressed envelope you supplied the Court.
  9. Contact the deceased’s financial institutions, superannuation funds, etc to close accounts. You will also need to notify the Australian Taxation Office (ATO). You will need a copy of the deceased’s death certificate.¬†
  10. You will need to complete a tax return for any taxable income, e.g. income tax, derived prior to the date of death.

Process for the administration of the estate when intestate:

Letters of Administration apply when there is no valid Will (intestacy), no executor named in the will or the executor of the Will has died and no substitute executor was identified in the Will. If you need to apply for Letters of Administration, contact our probate lawyers for expert legal advice.

The Letters of Administration process is as follows:

  1. When you have been notified of the death and are unable to locate a will, or the executor is not listed on the will or has passed away, contact Jameson Law for advice and assistance to  apply for Letters of Administration. 
  2. Ensure you have all of your documents together. Documents include a copy of the Will if it exists, any codicils attached to the will and a copy of the death certificate.
  3. Advertise a notice of your intention to apply for Letters of Administration. This is completed through the Online Registry. You must wait 14 days after advertising your intention to apply for Letters of Administration before you can file your Summons for Letters of Administration.
  4. File your Summons for Letters of Administration, draft Grant of Letters of Administration, Affidavit of the Applicant for Administration, inventory of property, original will (if it exists), and death certificate.
  5. You may need to file a Consent to Administration if there are additional beneficiaries but they are not included in your application. 
  6. You will be notified by. the court once the Letters of Administration have been approved.
  7. Contact the deceased’s financial institutions, superannuation funds, etc to close accounts. You will also need to notify the Australian Taxation Office (ATO). You will need a copy of the deceased’s death certificate.¬†
  8. You will need to complete a tax return for any taxable income, e.g. income tax, derived prior to the date of death.

Probate process

If you are an executor to a will, you may be required to apply for a grant of probate. Probate is not always required. It depends on the value of the assets and whether any real estate is involved. If you are unsure whether you need to apply for probate, contact our law firm for expert legal advice from our probate lawyers. 

The probate process is as follows:

  1. When you have been notified of the death, contact Jameson Law for advice and assistance with the probate process.
  2. Make sure you have all of your documents together. You will need a copy of the will, any codicils attached to the will and a copy of the death certificate. 
  3. Advertise a notice of your intention to apply for a grant of probate. This is completed using the Online Registry. You must wait 14 days after advertising your intention before you can file your summons for probate. This gives creditors the opportunity to claim on the estate for any outstanding debts owed to them and provides family members with an opportunity to make a family provisions claim. 
  4. Complete and file the summons for probate, 
  5. Draft and file the grant of probate and inventory of property 
  6. Prepare and file the Affidavit of the Executor and attach a copy of the will and the inventory of property
  7. File your application with the Supreme Court of NSW along with a self-addressed envelope. DO NOT file the original copy of the will as you will not get it back. Make sure you have a copy of the application and give your lawyer a copy if you file it yourself. 
  8. Once probate has been granted, it will be sent to you in the self-addressed envelope you supplied the court.

Letter of Administration

Letters of Administration apply when there is no valid will (intestacy), no executor named in the will or the executor of the will has died and no substitute executor was identified in the will. If you need to apply for Letters of Administration, contact our probate lawyers for expert legal advice.

The Letters of Administration process is as follows:

  1. When you have been notified of the death and are unable to locate a will, or the executor is not listed on the will or has passed away, contact Jameson Law for advice and assistance to apply for Letters of Administration. 
  2. Ensure you have all of your documents together. Documents include a copy of the will if it exists, any codicils attached to the will and a copy of the death certificate.
  3. Advertise a notice of your intention to apply for Letters of Administration. This is completed through the Online Registry. You must wait 14 days after advertising your intention to apply for Letters of Administration before you can file your Summons for Letters of Administration.
  4. File your Summons for Letters of Administration, draft Grant of Letters of Administration, Affidavit of the Applicant for Administration, inventory of property, original will (if it exists), and death certificate.
  5. You may need to file a Consent to Administration if there are additional beneficiaries but they are not included in your application. 
  6. You will be notified by. the court once the Letters of Administration have been approved.

Time limits

In the event a grant of probate or Letters of Administration are required, you need to start the process within 6 months of the person’s death. If there is a delay, you will need to notify the court as to the reason for the delay in the Executor’s Affidavit, or by filing an Affidavit of Delay with the Supreme Court. ¬†

If you wish to establish a testamentary trust, you have 3 years from the date of death. If you attempt to establish the trust after 3 years, it may result in significant taxation complications. 

If you need to contest a will on the grounds of family provisions (i.e. wife, husband, de facto, child, dependent, ex-partner, etc who has been left out of the will or believes they are entitled to more), you have 12 months from the date of death. If you are not challenging the will under family provisions, there is no time limit. 

Probate can be challenged once it has been finalised.

Disputes

Will disputes are heard in the Equity Division of the Supreme Court of New South Wales. 

A will dispute may arise because:

  • A party believes they have an entitlement to make a claim (family provisions)¬†
  • They believe the testator was not of sound mind at the time the will was made
  • Undue influence
  • Fraud
  • Forgery
  • The testator didn’t know and approve of the contents of the will

You can only contest or challenge a will if you have an interest in the deceased estate. For example:

  • You were listed as a beneficiary in the testator’s previous will
  • You would be considered a beneficiary under NSW law if the testator didn’t have a will
  • You are a beneficiary in the current will.

If you need to challenge or contest a will, you will need to find out if a grant of probate has been issued. If it hasn’t, you can lodge a probate caveat to prevent probate from being granted. You will then need to work with the executor to resolve your issue. If it cannot be resolved, you will need to file an application with the court to have the court resolve it.

Contesting a will can be expensive and time-consuming. It is essential that you have all required evidence before contesting the will to ensure the speedy resolution of your matter.

Enduring Power of Attorney

There are two types of Power of Attorney available in NSW:

  • Power of Attorney
  • Enduring Power of Attorney

Power of Attorney

A Power of Attorney is a legal document that authorises another person to act on your behalf in respect of your finances. You can give that person as much or as little authority as you choose. It takes effect from the time you and your Attorney have signed it. You can set the length of time that Power of Attorney will be in place. You can end it at any time you require. If you don’t set a time limit, it expires on your death, or in the event you no longer have the mental capacity to make your own decisions.

Requirements:

  • You must be of sound mind.¬†
  • Your Attorney (the person you are giving control to) must be over the age of 18 and able to assist with your requirements. For example, if you live in NSW, your Attorney shouldn’t live interstate or overseas.
  • You must sign it and have it witnessed and signed by someone over the age of 18 (not your Attorney).
  • It must be completed using the required forms.

Enduring Power of Attorney

An Enduring Power of Attorney is a legal document that authorises another person to act on your behalf in respect of your finances when you no longer have the mental capacity to so. It expires upon your death and all decisions thereafter are made by your executor. An Enduring Power of Attorney can take effect when you get dementia/Alzheimers or in the event you have an accident and are unable to make your own health directives.

Requirements:

  • You must be of sound mind. If you are not, an application can be made to NCAT to have one appointed.
  • Your Attorney (the person you are giving control to) must be over the age of 18 and able to assist with your requirements. For example, if you live in NSW, your Attorney shouldn’t live interstate or overseas.
  • You must sign it and have it witnessed by a prescribed witness e.g. legal practitioner or Register of the Court.
  • The Attorney must sign the attached form to show they consent and understand what is required of them. If you have been asked to be an Enduring Power of Attorney, you should get your own independent legal advice¬†before signing the forms.
  • It must be completed using the required forms.

If you are concerned about the decisions being made by an Enduring Power of Attorney, you can make an application to NCAT to have the Enduring Power of Attorney reviewed and amended where necessary. For advice on how to make an application to NCAT, contact our office for a free initial consultation.

Enduring Guardianship

An Enduring Guardianship is a legal document authorising another person or persons to make decisions relating to your healthcare and lifestyle in the event you are unable to do so yourself. This can range from agreeing to conduct medical tests, placing you in a care facility or terminating life support. It is up to you how narrow or broad the terms of the Enduring  Guardianship are.

It is essential that you have an Enduring Guardianship as the ‘next of kin’ has no legal status in Australia. In the event that you do not have one appointed, a process of substitute decision making applies. That means, your spouse or de facto is required to make a decision, followed by a close family member, friend, etc. Don’t leave your care to chance. Contact our office for advice about future-proofing your care when you can no longer make that decision for yourself. ¬†

Requirements:

  • You must be of sound mind. If you are not, an application can be made to NCAT to appoint an Enduring Guardian.
  • Your Enduring Guardian must be over the age of 18 and able to assist you with your requirements.
  • You must sign it and have it witnessed by an eligible witness e.g. legal practitioner, registrar of the court, etc.
  • Your Enduring Guardian must sign it and have it witnessed by an eligible witness e.g. legal practitioner, local court registrar, etc. Signing the form means you consent and are aware of your obligations. If you have been asked to be someone’s Enduring Guardian, you should get your own independent legal advice¬†before signing the form.¬†
  • It must be completed using the required forms.

If you are concerned about the care being given or decisions being made by an Enduring Guardian, you can make an application to NCAT to have the Enduring Guardianship reviewed and amended where necessary. For advice on how to make an application to NCAT, contact our office for a free initial consultation.

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our solicitors for legal advice tailored to your specific legal problem. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

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Frequently Asked Questions.

Your consultation will take anywhere from 30 minutes to 90 minutes

When it comes to your will, no one is looking at the clock. It is critical that we capture your requests with absolute clarity. Prior to your consultation, we highly recommend emailing through the details and documents outlined in the checklist above.
After your consultation, our dedicated legal drafters will draw up your will in a format to protect your will from contests and ensure your will is executed as intended.

It is important to update your will if and when there is a critical change in your asset holdings, you get married, a beneficiary or executed pass, you get married, you get a divorce, a new baby, changing your mind, and of course you simply change your mind.

Wills can be contested when children, partners and even ex’s are not given a share in the inheritance. Our estate lawyers follow case law closely and provide advice on the best possible avenues to ensure your final wishes are fulfilled. This can often include annexing additional letters and statements to your will to support your expressed exclusion of those individuals from receiving all or any part of your estate.

Life circumstances change, so it’s advisable to regularly review your Will to ensure that it accurately reflects your current wishes.
A Will must be signed by the person making the Will, and witnessed by 2 or more witnesses.
Beneficiaries should not be witnesses as it may cancel out their entitlement.
You can appoint Jameson Law as an independent and professional executor of your Will, and/or we can take over the task if requested.

If you die without a will, it means you die intestate. Your estate will be automatically split between your spouse and your children. If you do not have a spouse or children, your estate will be split amongst your remaining family members. Your estate will only go to the government once all options have been exhausted.

Wills, Enduring Power of Attorneys and Enduring Guardianship do not need to be registered. However, in order to conduct property transactions in NSW, a Power of Attorney and Enduring Power of Attorney need to be registered. For example, if you need to move into a nursing home due to dementia and your house needs to be sold to fund the move, your Enduring Power of Attorney cannot sell the property unless your Enduring Power of Attorney is registered with the General Registry of Deeds.

You should update your estate planning documents whenever there is a change in your personal circumstances. For example, divorce, death of an executor or beneficiary, you move interstate, acquire new assets, etc.

You can nominate a family member or friend to be your executor, however, it should be someone you trust. If you don’t have anyone that you trust to administer your estate, you can nominate the NSW Trustee and Guardian (previously known as the Public Trustee).¬†

You need to be careful if you nominate an executor who is also a beneficiary of your estate. It could create a conflict and result in your

In Australia, there is no inheritance tax. If real property is transferred to you as the beneficiary of a deceased estate, you will need to pay a transfer fee of $50 (fee current at the time of publishing). However, if you gift your share of the property to another person, they will need to pay duty (tax) on the portion transferred.

The length of time depends on a number of factors including whether a Grant of Probate or Letters of Administration are required. 

In the event a Grant of Probate or Letters of Administration are required, you need to start the process within 6 months of the person’s death. If there is a delay, you will need to notify the court as to the reason for the delay in the Executor’s Affidavit, or by filing an Affidavit of Delay with the Supreme Court. The longer you take to make this application, the longer the process becomes.

The process can be further delayed in the event someone contests the Will.

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