Probate & Deceased Estates
Assistance With Dealing With A Deceased Estate
At Williams & Lay Lawyers, we understand that dealing with a deceased estate is one of the more difficult challenges in life. From mountains of paperwork to legal jargon and simmering family disputes, they’re the last things you want to deal with when you’re grieving the loss of someone important in your life.
So, let us help you by:
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Interpreting the Will of the deceased in terms of estate laws
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Advising executors and trustees in regard to their duties and rights
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Informing government bodies, including Centrelink and Veterans Affairs
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Applying for Probate of the Will in the Supreme Court
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Dealing with intestacy (where there is no Will)
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Applying for Letters of Administration (if the Will is deemed invalid or is absent)
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Identifying estate assets and liabilities
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Obtaining valuations of estate property
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Collecting estate financial assets, including superannuation, bank funds, shares, outstanding loans, and insurance payouts
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Selling or transferring estate property, including estate auctions
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Paying estate debts, including mortgages, funeral costs, and testamentary expenses
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Advice concerning family and testamentary trusts
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Administering trust funds
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Distributing bequests and inheritances to beneficiaries
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Organising information for estate tax returns
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Family mediation and negotiation
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Contesting wills and defending estate litigation in the Supreme Court
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 the 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.
Executors’ duties
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Organising the funeral, notices for the paper, flowers
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Locating the Will
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Obtaining a copy of the Death Certificate
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Making sure any property and assets are safe and secure
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Determining the value of assets
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Applying for Probate
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Paying insurance policies, debts and taxes
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Collecting monies belonging to the deceased from financial institutions and insurance companies
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Collecting debts owed to the deceased
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Lodging tax returns for the deceased and for the estate
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Selling properties and assets
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Reporting to beneficiaries
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Distributing the proceeds of the estate to beneficiaries
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Setting up trusts
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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 estate, not the Executors, usually covers the cost of legal advice.
What is a 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’m not up to the job?
Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If another executor is named, they can take on the whole 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.
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. But who can contest 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:
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wife or husband
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defacto or same sex-partner
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former spouse or defacto partner
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child, stepchild, or grandchild
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parent of a child of the deceased
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parent, brother, or sister
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someone who was financially dependent on the deceased
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carer of the deceased
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Someone who resided in the same home as the deceased
This is a very general guide only, so please contact us to discuss your particular circumstances.
Is there a time limit when contesting a will?
Yes, there is. In most cases, you will only have 12 months from the date of their death to make a claim or you will only have 6 months from the grant of probate to make your 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 lacks 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 against a will?
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; in some cases, the court will require mediation.
Failing all else, we will proceed to a court hearing wherein the evidence will be presented, and the judge will make a decision.
How we can help!
At every stage of contesting or challenging a will, it’s essential 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 the court, we also have the skills to fight on your behalf.