Wills & Estates

    Wills & Estate Planning

    Nobody likes to think about it too much, but inevitably one day you will have to leave your business or farm, whether by selling up, retiring or leaving for health reasons.

    It is very important to have a succession plan in place that makes the transition easy not only for yourself but also for your family or employees and minimises the chances of the business or farm having to be sold up when you leave.

    Estate planning goes beyond drafting a will – it includes:
    • The assessment of assets
    • The assessment of likely taxation
    • Advice regarding the possibility of claims against the estate by third parties
    • The protection of assets
    Estate planning is an active process of re-evaluating the estate when circumstances in life change, such as:
    • Newly married couples or those divorcing
    • A change to the family’s asset pool
    • A change in working conditions such as the buying or selling of a business
    • Changes to superannuation, insurance policies or taxation levels
    • The establishment of discretionary trusts
    A successful plan is made involving all family members as it will take into account not only provisions for your retirement income but also the plans, aptitudes and existing assets of younger generations. 

    Contesting a Will

    If you’ve been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the estate.

    Who can dispute a Will?
    It varies from state to state, but some of the people who may be entitled to claim include people who had a relationship with the deceased such as:
    • Wife or husband
    • Defacto or same sex partner
    • Former spouse or defacto partner
    • Child, stepchild or grandchild
    • Parent of a child of the deceased
    • Parent, brother or sister
    • Someone who was financially dependent on the deceased
    • Carer of the deceased
    This is a very general guide only so please contact us to discuss your particular circumstances.

    Is there a time limit?
    Yes, there is. You have only 12 months from the date of their death to make a claim. In certain circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.

    What if I don’t believe the Will was valid?
    You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.

    How do I make a claim?
    First, contact a lawyer, who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.

    If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court.

    Failing all else, we will proceed to a court hearing wherein the evidence will be presented and the judge will make a decision.

    We can help
    At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to fight on your behalf.Nobody likes to think about it too much, but inevitably one day you will have to leave your business or farm, whether by selling up, retiring or leaving for health reasons.

    It is very important to have a succession plan in place that makes the transition easy not only for yourself but also for your family or employees and minimises the chances of the business or farm having to be sold up when you leave.

    Estate planning goes beyond drafting a will – it includes:
    • The assessment of assets
    • The assessment of likely taxation
    • Advice regarding the possibility of claims against the estate by third parties
    • The protection of assets
    Estate planning is an active process of re-evaluating the estate when circumstances in life change, such as:
    • Newly married couples or those divorcing
    • A change to the family’s asset pool
    • A change in working conditions such as the buying or selling of a business
    • Changes to superannuation, insurance policies or taxation levels
    • The establishment of discretionary trusts
    A successful plan is made involving all family members as it will take into account not only provisions for your retirement income but also the plans, aptitudes and existing assets of younger generations. 

    Executors & Probate

    Are you a Will Executor? 
    Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.

    Executor Duties
    An executor’s duties may include responsibilities such as:
    • Organising the funeral, notices for the paper, flowers
    • Locating the Will
    • Obtaining a copy of the Death Certificate
    • Making sure any property and assets are safe and secure
    • Determining the value of assets
    • Applying for Probate
    • Paying insurance policies, debts and taxes
    • Collecting monies belonging to the deceased from financial institutions and insurance companies
    • Collecting debts owed to the deceased
    • Lodging tax returns for the deceased and for the estate
    • Selling properties and assets
    • Reporting to beneficiaries
    • Distributing the proceeds of the estate to beneficiaries
    • Setting up trusts
    Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.

    Do Executors Get Paid?
    It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission.

    Do I need a Lawyer?
    Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors.

    What is Probate?
    Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.

    What if there is no Will?
    This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.

    What if I dont want to act as Executor?
    Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.

    In line with our motto, we are always looking for the best outcome for you during the whole litigation process, thus ensuring your future is safe with us. 

    If you are embrolied in litigation and looking for representation, or if you are looking to initiate court proceedings, we are here for you. Simply fill out the form below and our team will be in touch. For urgent matters, feel free to call or sms our urgent number and we will respond promptly. 

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