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“Drafting a Will is simple, and cheap…isn’t it?”

When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit.  After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved.  That’s right, isn’t it?

Well, yes and no.

Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible.  When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged.  If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough. [...]  READ MORE →

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Contesting a Will

Contesting a Will

Contesting a will occurs where a person claims they have not received adequate provision under the deceased’s will. The law permits a Will to be altered after the consideration of several factors.
It begins with the drafting of a will. The will maker attempts to balance the competing interest of beneficiaries that they believe should benefit. Our Estate Planning Solicitors will be able to advise as to the moral obligation that may be owed to the various parties in your life. If one of these parties feels as though they deserve more or are entitled to more, they would likely exercise their right under the Family Provisions Act and contest the will to seek adequate provision. [...]  READ MORE →

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WILL DISPUTES IN NSW

WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS

 When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.  

Who is Eligible to make a Family Provision claim?

In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include: [...]  READ MORE →

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Probate Caveats (NSW)

PROBATE CAVEATS (NSW)

If you think the will of a loved one being probated is invalid or there is another will that supersedes the will being probated, then you should consider placing a caveat over the application for a grant.

You could protect your interest in the deceased’s estate, by lodging a caveat to stay the proceedings seeking Probate or Letters of Administration or resealing, until such disputes are resolved.

Grounds for lodging a Probate Caveat

A Probate Caveat could be lodged if you intend to challenge the validity of a will, where there are concerns of the will being forged, the will-maker not having testamentary capacity to make the will or the will being executed under duress. [...]  READ MORE →

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Intestacy – the rules of Succession

Intestacy – the rules of Succession

Intestacy: refers to a situation where somebody has died without leaving a valid will. If you die without a will, a statutory formula is used to determine how your assets are distributed. Consider the following scenario:

Karen died without a will and left her de-facto partner Paul. Karen also left a child Chloe from her previous marriage with Mark (now divorced). According to the statutory formula:

  1. Paul will be entitled to Karen’s personal effects, statutory legacy ($490,000 approximately and CPI adjusted) and one-half of the remainder (if any) of Karen’s estate.
  2. Chloe will be entitled to the remaining one-half of Karen’s estate after Paul’s entitlement has been taken out; and
  3. Mark will not be entitled to receive any of Karen’s estate.

This scenario involving Karen’s estate may not have been at all how Karen would have wanted her estate to be distributed. If only Karen had a valid will at the date of her death! [...]  READ MORE →

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Superannuation, SMSFs and Trustees – How do they interact with your Estate

Superannuation, SMSFs and Trustees – How do they interact with your Estate?

Your superannuation is not usually covered by your Will. The reason for this is that your super is held in trust for you by the Trustee of your super fund. You can make a binding nomination. A valid binding nomination creates a legally binding instruction on the Trustee of your super fund to distribute your super to the beneficiary or beneficiaries that you nominate.

Your binding nomination often needs to be reissued every three years, which also serves as a good reminder to update your Will and to check that your estate plan continues to be structured in an effective way.  [...]  READ MORE →

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Choosing the Right Executor

Choosing the right Executor and being an Executor

Choosing

Choosing an executor is one of the most significant aspects of effective estate planning. An executor is responsible for managing the administration of your estate and the distribution of your assets in accordance with your will. Often the wrong choice of executor in hindsight can lead to or exacerbate will disputes later on.

The obligations of an executor and the factors that need to be considered in choosing an executor will vary based on the wishes of the will maker.

Firstly, one must consider the number of executors they wish to appoint. If choosing multiple executors, keep in mind that if there are any disputes between your executors, it will likely have a detrimental effect on the administration of your estate, by costing the estate time and money. [...]  READ MORE →

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Digital Assets in Your Will

Digital Assets – what happens to them?

We live in an era where our digital footprint has come to reflect more of our identity than werealise. As technology continues to advance, it is important to account for digital assets in theprocess of estate planning.

 Digital assets are often overlooked and can lead to loss of personal information andphotographs that were unable to be retained through ‘digital inheritance’. To know whether itcan be passed down in a will, it must be transferable.

Examples include:

  • Bitcoin and other forms of cryptocurrency
  • Non-fungible tokens (NFTs)
  • Domain names
  • Online account funds, e.g., PayPal
  • Money from an online shopping service, e.g., Amazon, Esty
  • Digital music files or pictures
  • Frequent flyer miles from your airline
  • Blog content or other online published works
  • Monetized video channels earning advertising revenue.
  • Online investment portfolios

Social media handles and email accounts are characterised as ‘non-transferable’ assets whichare not under individual ownership, and only temporarily licenced for personal use. Thesetherefore cannot be ‘inherited’ under a will but can be accessed if instructed to beneficiariesin an Estate Plan. [...]  READ MORE →

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Estate Planning for Blended Families

Blended families – what are the issues that arise during Estates and how can they be bypassed?

Blended families (“Brady Bunch families”) create special problems and their own challenges in estate planning. Children of past marriages need to be considered and both sets of children need their interests protected, without it impacting on the needs of a current spouse or partner.

Problems that occur from blended family estates include forgetting how assets are held, which therefore automatically pass to a joint owner, potentially creating conflict between the children of the deceased and the beneficiary, failing to distinguish giving “use” of assets to a surviving spouse during their lifetime, as opposed to an outright gift of those assets and creating dissent between the adult children of the previous marriages and the younger children of the current marriage. [...]  READ MORE →

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Testamentary Trust Wills

What are Testamentary Trust Wills?

A testamentary trust will allows you to pass on assets to your beneficiaries by creating a trust, or multiple trusts, in your will. In this type of will, you nominate a trustee to administer the trust for the benefit of the beneficiaries.

There can be significant tax benefits in setting up a testamentary trust particularly for minor or vulnerable beneficiaries. A testamentary trust can also provide asset protection and be effective in protecting beneficiaries from creditors and protecting reckless spenders or intellectually impaired individuals. [...]  READ MORE →

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Financial managers and attorneys – what can happen if they act without authority?

Financial managers and attorneys – what can happen if they act without authority?

Choosing an attorney to manage your financial affairs when it is not possible to do so is a choice that requires great care. The person you choose will be able to access and use your assets as if they are their own.

While the attorney or manager can use your assets, they are still legally your assets. It does not entitle the attorney or manager to use them for their own benefit and they must only be used in your best interests.

This is one of the basic principles in fiduciary duties, a set of responsibilities undertaken by the attorney, mainly to ensure that the principal is looked after, and their best interests are accounted for. This includes being honest, keeping accounts separate and ensuring that there is a detailed record of accounts for the assets that are used, along with the reasons for them. [...]  READ MORE →

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Power of Attorney Revoked or Renounced

When can a power of attorney be revoked or renounced?

Revocation:

In most cases, a person (the principal) who has appointed someone else to act as their attorney may revoke that power at any time if they wish, if they have legal capacity.

 However, an irrevocable power of attorney can only be revoked in very limited circumstances – for example if the attorney consents.

 A principal may wish to revoke a power of attorney for a wide variety of reasons. For example, the attorney’s health may have declined, or the attorney may no longer be suitable to act or there may have been a falling out between the principal and the attorney. [...]  READ MORE →