I have been left out of my mother’s/father’s Will.
What is a testamentary trust?
How can I challenge a Will?
What happens if I don't leave a Will?
There are many places on the internet where you can get answers to these kinds of questions. What you really want to know is how you can get expert advice on Estate and Will questions from people who have relevant experience.
Why is it important to get estate planning advice?
Planning your estate can involve consideration of laws involving matters such as capital gains tax, stamp duties and superannuation, which can have a major impact on your estate. The way you deal with the different types of your assets may have very different implications for your beneficiaries.
Taking time to get professional advice when planning your estate is the most important way in which you can make sure people closest to you receive the benefit of your life's work. In some cases it involves a partnership between your accountant and lawyer, and possibly your financial planner.
Toomey Pegg ensures that:
you will get quick expert advice
we will give you up to 15 minutes of advice before we charge you for anything
we will give you the personal service for which we have become known
All estates are different, so we are happy for you make that initial call, or email us, and ask us any questions about your particular situation.
You should check to see whether the deceased person had a prepaid funeral account so that you can contact that funeral director and arrange the funeral. Otherwise, you can select any funeral director you wish.
In the initial stages after a person has died the funeral director will provide you with the most helpful advice on matters such as:
notifying relevant authorities of the death
arranging the funeral
obtaining the death certificate
any memorial service
paying the funeral account. If you take the funeral director’s tax invoice to any bank where the deceased had a bank account, the bank will usually pay the tax invoice out of the account
Look for a Will
You should look for a Will in case the person who has died left funeral instructions in it, or with it. Leaving instructions in this way is fairly uncommon, as most people let their families know in one way or another what they would like to happen at their funeral. The Will may be with their papers or with a lawyer.
This will be a stressful time so you do not need to do anything more until the funeral is behind you.
After the funeral
The next step is to have a look through the deceased’s papers to find out what the deceased owned. Immediate family are the most obvious people to do this. If the deceased has left a Will and has nominated an executor in the Will, the executor is the appropriate person to go through the deceased’s papers to work out what assets they will have to deal with in due course.
The assets could be anything from a small bank account to a multi-million-dollar portfolio of assets. If the deceased had an accountant you should contact them for help with compiling a list of assets. Of course, you may already know all this. Once you have the Will and the list of assets, you are ready to take the next steps in the estate.
Executor and Administrator
What is an Executor?
An executor is the person or persons named in a Will who has the responsibility to collect and hold the assets of the deceased and to comply with the terms of the Will. The executor must be formally appointed by the Supreme Court of NSW. The process is called granting “probate”. This is the official recognition by the Supreme Court that that Will is valid and that the executors have been properly appointed.
What is an Administrator?
If a person does not have a Will they are said to have died “intestate” (meaning “without a Will”). If there are assets that need to be collected and distributed, you can ask the Court to appoint an “Administrator” from the relatives and others listed in the Succession Act. The Court makes a grant of “Letters of Administration” or in short, “Administration”.
What are the legal duties of the Executor or Administrator and the steps they must follow?
The Executor and Administrator must collect the assets and then distribute them to the people who are entitled to them. If there is no Will, the Succession Act specifies who is entitled to the estate.
The roles include:
initially looking after assets. On a practical level this could include things like securing the house, checking and arranging insurance, mowing the lawn or even finding a home for pets.
if the deceased was running a business, speak to all relevant people to protect the value and assets of the business and to enable it to be kept running if possible.
identifying the assets.
notifying the beneficiaries – those who will receive a share of the person’s Estate.
valuing the estate where necessary.
obtaining Probate or Administration from the Supreme Court. To do this the Executor/Administrator must lodge documents such as the Will, death certificate and details of assets and beneficiaries with the Supreme Court.
completing income tax returns.
paying all debts from the estate funds.
collecting the assets and distributing the estate. Assets may need to be sold or they may be split among beneficiaries.
establishing any trusts that are required. For example, if there are children under 18 (or any higher age specified in the Will) the Executor or Administrator will have to hold and invest the assets until the beneficiary reaches the relevant age when the assets can be transferred to them
Do you always have to apply for Probate or Administration?
No, not always. For example, where assets such as property and bank accounts are jointly owned they normally pass by law to the survivor, and then Probate or Administration are unnecessary. There are also other times in smaller Estates when Probate does not need to be granted.
Is there any financial compensation for being an Executor?
If you are to receive a gift from the Will, generally the court considers that to be the reward for all your work. If you are not to benefit from the Will, you can apply to the Court for an Executor's commission. You will always be compensated for out-of-pocket expenses for your work as Executor.
Can I resign if I've been appointed an Executor?
A person cannot be forced to be an Executor against their wishes. If a person has been named as Executor in a Will but does not wish to accept appointment they can "renounce probate" before being appointed.
Does an Executor need to give permission to be appointed?
No, you can appoint anyone to be your Executor without asking their permission. However, it is a good idea to first check the person's willingness to help - then you can be sure your wishes will be carried out as carefully and properly as you have hoped.
How long does it take to get Probate or Administration?
We all hear horror stories about how long it has taken for an estate to be administered after a relative has died. In a typical estate the beneficiaries should receive their share in about six months.
However, delays can occur for a variety of reasons, including where assets are held on term deposit, or it is not a good time to sell shares or a house, or beneficiaries must be located. Perhaps tax claims must be settled. Where a person makes or threatens to make a claim against the estate for having been left out of a Will, or for not having received a fair share of the estate, the person must commence court proceedings within 12 months of the date of death. In this case the executors may have to wait for 12 months before they can distribute the estate to the beneficiaries.
Where there are underage beneficiaries the estate must be held by the Executor (now acting as trustee) until a child becomes entitled to their share.
What is a Trustee?
A trustee is a person who holds property for someone else according to the rules set out in the Will or other trust document or, the Trustee Act.
Where an Executor collects assets but must hold them for any length of time, for example where the beneficiary is under 18 and does not have the capacity to take their share of the estate, the role of the executor changes into that of a trustee and they must invest the money or preserve the assets and hold them until the child turns 18, or any later age that is specified in the Will.
What can I do if I have been left out of a Will?
A person generally has the right to give their estate to whoever they like. However, because this can be unfair to some people, the Succession Act gives the Supreme Court the power to rewrite a Will to give something to a person who it believes should have been left something in a Will. People who can make a claim are called “eligible persons” and include family and also persons who may have lived in a family relationship with the testator. Making these claims can be quite difficult and you should speak to an experienced lawyer if you believe that the deceased should have left you something. Cases where parents and children have been estranged are especially difficult.
Where children are involved, sometimes you must go to court even if there is no dispute. Children under 18 are not able to make binding decisions, even decisions in their favour, and the Supreme Court must approve any settlement or amendment to the Will.
If a person wishes to give something to an eligible person before they die, and to preclude a claim by that person after they die, it is possible to ask the court to approve the gift. In this way a beneficiary can be given assistance during the lifetime of the deceased with the assurance that a claim cannot be made against their estate when they die. However, the court must formally approve the settlement to make sure that all of the beneficiaries receive a fair deal.
Other Estate Disputes
Lack of mental capacity
"My mother (or father) did not have capacity to make a Will"
If it can be shown that the Will-maker did not have mental capacity when they signed a Will, the last Will that they made when they had capacity will revive. Clear evidence is required to prove lack of mental capacity but, if the evidence can be collected, the Will can be set aside.
Another reason for setting aside a Will is where the Will does not represent the intentions of the deceased because they have been unduly influenced by another person. It may be that the deceased was not able to stand up to the influence of other people because of their age, physical weaknesses or emotional incapacity. As you can imagine, success in these cases requires a very high standard of proof.
One of our lawyers was involved in a matter where unhappy beneficiaries claimed both lack of mental capacity and undue influence. However, the beneficiaries had not seen the deceased for a lengthy period of time and also were not able to find any witness to support their claim. The matter did not proceed.
In another case a deceased changed their Will in favour of neighbours who had been caring for the deceased. The Court upheld the Will in favour of the neighbours.
Interpretation of a Will
If the Will is unclear, the court may have to interpret it to decide what the deceased actually meant.
Interpretation cases often arise where money has been left to a charity but the charity no longer exists or no longer carries out the same charitable work that the Will provided for.
What we charge
Probate and administration
We charge fees for our legal work done up to and including the grant of Probate or Administration according to a government set scale of fees. We tell the executors the amount of these fees before making the application to the Supreme Court. The fees for work done in assisting to collect and distribute the estate depends on the extent of the assets and the amount of work that is involved. We tell clients the amount of these fees before we apply for Probate or Administration.
If we are asked to become involved in court proceedings, we will provide you with our estimate of the costs, which vary depending on the complexity of the case.