Are you the executor appointed in the Will of a family member? Read on to understand what this involves and what will be required of you when the time comes. Having knowledge about the process will make the task easier for you during what is inevitably going to be an emotional and upsetting time.

As executor of a Will, your role will be to finalise all the legal and financial matters of the deceased and distribute the deceased’s assets and possessions as they have requested in their Will.  Applying for probate is one of the early steps in this process. Probate is simply a legal term for the process where the court system ‘proves’ that the Last Will and Testament of the deceased is legal and valid. Once this is complete, you, as executor, can move forward with the job of distributing the estate.  

The mechanism of applying for probate is designed to protect both the wishes of the deceased and the rights of the next of kin and beneficiaries. It also includes publicising the death to ensure the opportunity for debts to be settled appropriately as part of the process.

In the case where a person dies “intestate”, that is, without a legal Will in place, you will be unable to apply for probate but can apply for “Administration” of the estate which is a similar process.  The estate is then distributed in accordance with laws of intestacy which determine beneficiaries following a line of a family tree.  

How to initiate probate 

In NSW probate is granted by the Supreme Court of NSW and there are specific steps that must be followed and allowable time frames for the probate division of the Court  to grant the probate 

Timeframe

The probate application cannot be submitted until at least 14 days after the date recorded on the death certificate but should be submitted within six months.  Probate applications that are submitted more than six months after the death of the deceased will require an affidavit from the executor containing an explanation to the court about why there was a delay.

Documents required

The documents you will require to achieve probate from the court include:

  • The deceased’s original Will – this is an important legal document so be sure to handle it carefully, do not add or remove staples, make any markings or even fold the document
  • The original death certificate
  • An inventory of property listing all of the deceased’s assets and liabilities at the time of death.  This often involves contacting the asset holders (such as banks) to determine the value of the asset and to determine any particular requirements that will need to be met before the asset is released.
  • The full names and residential addresses of the Will’s witnesses
  • A completed ‘motion for probate’ application form
  • An affidavit from the executor

Process

Once you have gathered all the documentation required for probate the process is as follows:

  1. Publish a public notice of intended distribution of the estate with the NSW Online Registry – this allows the opportunity for any creditors  (or claimants) to come forward and notifies the court of your intention to apply for probate;
  2. Fourteen days after the public notice is published, the probate application can be submitted with the Supreme Court;
  3. If needed, respond to any queries from the court;
  4. If all the documents for probate are completed and submitted correctly, the court process will take around 20 working days to approve.

Costs

The costs for obtaining a grant of probate by the Court will include advertising fees and court filing fees.  The advertising fee is fairly nominal.  The filing fee is determined in accordance with a scale which is impacted by the overall value of the estate. 

There will also be a fee for obtaining the original death certificate from the NSW Registry of Births, Deaths and Marriages.  The funeral director will usually apply for and supply a death certificate for you.  This original will need to be submitted to the Court and can be returned to you upon your request.  Alternatively, you may wish to organise a second copy for your records.  Additionally, if you engage a solicitor to assist with the documentation and legalities there will be legal fees. 

Keep in mind that these costs are not expected to be paid by you personally, they ultimately come out of the deceased’s estate prior to distribution to the beneficiaries.

Is probate always necessary?

Probate is not necessary in all matters.  Much will depend on the deceased’s assets and the requirements of the asset holders (the bank etc)  It’s best to get qualified legal advice to confirm if this applies in your circumstances.

I don’t want to be Executor

If you have been made executor of an Estate and at the time of the person’s death you are unwilling or believe you are not in a suitable position to perform your duties in this role, there are options.  In the case where there are multiple executors listed in the Will, the remaining executor/s can apply for probate without you, you just need to sign a renunciation form.  In the case where there is only one executor, then another person would have to apply for administration of the estate.

Other situations that can complicate probate and the distribution of an estate include:

  • Where a claim is made against the Estate by an eligible person.
  • Blended families where spouses and offspring from multiple relationships are eligible for inheritance.
  • Where property and assets are located across different states and/or countries.

Estate matters can be complicated and some are simply time-consuming.  Please do not hesitate to get in touch with us for initial advice relevant to your matter.

Insight Legal Solutions - husband signing paperwork during divorce without consent

There have been countless times over the past decade that I have heard a client say their ex will not sign the divorce papers until this happens, or that happens.  This usually revolves around using the divorce as a bargaining chip to negotiate parenting arrangements, financial agreements or property settlements.

My clients in these situations are always so happy to hear me say “you don’t need their consent … you can do a sole application!”  There are very limited grounds upon which someone can object to a divorce application noting that the main thing you need to show the court is that there has been an irretrievable breakdown of the marriage – which is usually evidenced by a separation period exceeding 12 months.

There are two ways to obtain a divorce in Australia – a joint application and a sole application. 

  •  A joint application is handy where possible, particularly if you have kids under 18, as it means no one has to go to court and no one needs to serve documents on the other. A joint application is signed by both parties, filed with the Court online and in due course it will be looked at by a Registrar of the Court and the divorce order will be issued.  
  • sole application is a bit trickier but a great option if you are not so amicable with the other side, if they are using the divorce as a bargaining chip or if they do not want to ‘consent’ to the divorce. The application is signed and filed by just one party and then served on the other party. You then must prove to the Court that the other party has been served properly in accordance with the Rules of the Court.  If there are children of the relationship who are under 18 then you or your lawyer will need to appear at the divorce court hearing before a divorce order is made.   The reason why an appearance is required is so that the Court can satisfy themselves that there are proper arrangements in place that provide for the children’s care, welfare and development.  This usually is not a difficult hurdle to jump over and the divorce is usually granted at the divorce hearing and a divorce order is issued in due course.

Other things that might interest you about applying for a divorce:

  • You have to be separated for 12 months before a divorce can be applied for.
  • You can be separated under the one roof but special conditions apply, requiring some additional information needing to be provided to the Court.
  • Divorce applications can be objected to but only on very few grounds given Australia’s no-fault divorce theory.
  • A divorce order is not effective until 1 month and 1 day after the divorce order is made by the Court  (so approximately one month after your divorce hearing).
  • Once a divorce is granted, the clock starts ticking on limitation periods relating to property settlements.

For more information on how we can help you with your divorce (at a fixed fee!) please contact us on 02 4408388 to make an appointment.

The short answer is that estate planning is very important. It’s important for reasons that might surprise you.  Whilst it may not be a nice thing to think about, talking about your wishes and getting proper advice can make things a lot easier for your loved ones later on.

Why is it important?

  • When you die, your estate may be distributed in ways that you had not intended:
    •  If you are not formally divorced, your spouse may inherit your estate either because you haven’t updated your current will or you don’t have a will at all – do you want that??
    • If you are divorced, your Will, or parts of it, may be considered revoked and your estate may be distributed in a way that you did not intend.
  • Even if your estate goes to your kids like you may have wanted, who is to manage this money until they become an adult? Your former partner? And their new partner? You might not be ok with this and a properly constructed Will allows you to appoint a trustee to manage your children’s inheritance until they are adults.
  • Your power of attorney and enduring guardianship appointments are not revoked just because you are separated or divorced. Would you want your former partner controlling your finances or to be making decisions about your health care including life and death decisions?
  • Superannuation is easy to forget about it – its money that we have never even seen!!! But often it is quite a significant asset and your trustee of the fund determines where it is paid, NOT your will.  If you have taken the right steps, your trustee may very well determine that your ex is still the primary person to benefit from your superannuation despite your separation.
  • If you have entered into a new relationship, do you want to make sure your children still receive the inheritance you hoped to provide them? In absence of a will, your children could end up with less than you expected. If you have a will but it doesn’t properly provide for your partner, this could lead to costly disputes.  Estate planning for blended families is essential in order to balance your responsibilities and to achieve the intended outcomes as much as is possible.

Post-separation is a period of huge change in your life. Regular revision of your Will, Power of Attorney and Enduring Guardian is recommended and provides a chance for you to take control of your life so that you and your loved ones are properly protected.  Contact us today and we can help you ensure your wishes are properly documents.

Wow – what a changing world we are all experiencing with the impacts of COVID-19 “Corona” virus on our society.

On top of everything else, corona co-parenting is likely to have a whole set of additional stressors for parents.  Whether you have court orders in place, a written parenting plan or an undocumented agreement – the limitations being put in place by our Government during this crazy time is very likely to impact your parenting arrangement.

You may have questions such as:

  • Do I have to comply with parenting arrangements or Court orders?
  • How do I do changeover if my changeover venue is shut or there is a lock down?
  • Are the Courts open and able to progress my matter?

If your parenting arrangement is documented by Court Orders then you are obligated to comply with the orders unless your have a reasonable excuse for breaching them.  Serious penalties can apply if you don’t have a reasonable excuse.  Given that most consent orders do not contemplate a serious pandemic like we are experiencing, it may well be that over the coming days and weeks, circumstances will arise that satisfy the reasonable excuse criteria.  However, the pandemic should not be used as an excuse to limit a child’s relationship with the other parent.  We encourage you to get advice from a lawyer practicing in family law before breaching court orders.

Some things that may impact whether a contravention is “reasonable”-

  • restrictions put in place in relation to social isolation and freedom of movement, including lock down (whether or not it is considered “essential” to leave your home for a changeover will depend on restrictions put in place and your circumstances);
  • restrictions on interstate travel;
  • what is in the best interest of your child, including protection of your child’s health and whether your child will be at a significant risk of harm if moved between households (e.g if someone in the other parent’s household has been exposed to or infected with the virus).

If your parenting arrangement is not court ordered then you won’t get in trouble for not adhering to your usual arrangement however keep in mind that children thrive off routine and if they do go an extended period of time not seeing the other parent, it could have a negative impact on them.  Your relationship with the other parent may also suffer if you act unreasonably.

Many changeover locations are very likely to be impacted noting closures of public places, sporting venues and the absences of children from school attendance.  Try and think of some alternative changeover options.  House-to-house changeovers are probably the most suitable provided this is a safe option for you.  If in doubt due to safety reasons, changeover close to or within a police station may be suitable but should only be used as a last resort.

The courts are currently open but operating mainly by telephone.  This means matters will progress but if the courts are forced to reduce their operations then there may be some back log in the months to come.  Serious cases will be prioritised.  The Courts have also indicated that they are happy to accept amended orders electronically and if agreement cannot be reached (or it is unsafe to attempt such agreements), they will consider electronic applications for amendments to orders.

In summary, your first port of call should be to try and reach a common-sense agreement with the other parent that is in the best interest of your kids.  If this is not possible then you should reach out to your lawyer to discuss the particulars of your matter.  Contact us for a telephone consultation today.