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Often people will make inquiries regarding preparation of a will with the fear that their assets will not make their way to the family members, or even be taken over by the government.
The State of New South Wales has legislation to address circumstances where a deceased person has not left a valid will and we set out a bit about that below.
How can I make sure my family inherit my Estate?
The formal requirements for a valid will as set out in section 6 of the Succession Act 2006 are that:
- It is in writing.
- It is signed by you, with the intention of executing the will.
- The signature of, or on your behalf, must be made or acknowledged by the testator in the presence of two or more witnesses.
Under the will, an Executor is the person responsible for administrating the assets of your Estate. There are certain obligations on an Executors and Trustees to carry out your wishes in your will and to deal with the Estate in a timely manner.
Your Will deals with each of your assets in accordance with your wishes and you can set out who will inherit your Estate, including the making of any specific gifts.
It’s important to keep your will up to date as your family dynamics change.
If your Estate is more complex, a Testamentary Trust may be suitable to manage your assets upon your passing.
What happens when someone passes away?
Intestacy
In NSW, if you pass way without a valid will, your Estate will be dealt with pursuant to the rules of intestacy. The legislation governing Estate distribution sets out who can apply, the categories of potential beneficiaries and the procedure for such applications.
An application to the Supreme Court of New South Wales is referred to as Letters of Administration.
Application for Probate
An application for probate is made by way of Summons to the Supreme Court of NSW. It is made by the Executor(s) of an Estate so that they can act on the wishes of the deceased by calling in assets and distributing them to the beneficiaries of a Will.
An application can become complex and overwhelming, particularly where real property is involved.
If you require assistance with preparing or updating a Will, an application for a grant of probate or if a family member has passed away without leaving behind a valid will, we invite you to contact our Wills and Estates team and book a consult with one of our experienced wills and estate lawyers to discuss your matter.
