There are only two things in life that are certain…death and taxes. If you want to prepare for your death, you must have an estate plan. This not only gives you peace of mind about how your affairs will be handled once you’re gone, but it will also greatly assist your loved ones during one of the most difficult times in their lives. 

Sydney Will and Estate Lawyers

Estate planning is governed by the estate planning laws of each state and territory in Australia. In NSW, estate planning includes:

• Wills

• Power of Attorney

• Enduring Guardianship 

Succession Act 2006 (NSW), Power of Attorney Act 2003 (NSW) and Guardianship Act 1987 (NSW) govern estate planning in NSW. If you have a family trust, business, mixed family or overseas assets, estate planning can be very complicated. Make sure your wishes are carried out. 

What is the need for a good Will and Estate Lawyer?

The Estate Lawyers at Truth Lawyers will protect your family’s well-being and your final wishes, even if you are no longer around to do so.

With our lawyers and legal writers behind them, your will is accurate, valid, and covers everything that is important to you.

Putting together your will requires what information?

• Vehicles: The model, year, and registration details of any vehicles you own; including motor vehicles, caravans, boats, and/or motorbikes

• Shares and Investments: All Security Reference Numbers – these can be found on dividend statements

• Funeral Arrangements: Details of any prepaid funeral plan/policy and/or funeral bond and/or prepaid monumental works

• Bank Accounts and Term Deposits: Recent bank account statement along with account numbers

• Superannuation: The name(s) of your Fund/s and your Member number(s)

• Insurance: The company names and reference numbers relating to your life or life or funeral policies

• Overseas Assets: Details regarding any international assets you have

• Other Assets: The trust deeds, partnership agreements, and/or articles of association relating to private companies, partnerships, and/or family trusts AND Details of any digital assets such as online betting accounts

• Liabilities: Details of any outstanding liabilities, such as a home loan or other loans, including loans to family members.

How should you proceed?

• House: 

  • Who owns your house and to whom it is mortgaged

  • Where the Certificate of Title is located and what the title reference is

  • As a Tenant in Common or Joint Tenant, you own your property with one or more others

• Vehicles

  • If you have any loans against any of your vehicles, and to whom these loans are owed.

• Investments/Shares

  • Shares held jointly or individually, and where your capital gains records are stored

• Funeral Arrangements

  • Burial or cremation instructions

• Superannuation

  • Whether you have named beneficiaries and/or a binding nomination

• Insurance

  • Any beneficiaries you have nominated for your funeral and/or life insurance policies

• Effects and furniture

  • These items are estimated to be worth

  • In your Will, please make a specific mention of any specific items (especially those of higher value and/or sentimental value, such as original paintings and/or service medals).

• Under-18 Guardianship

  • Your wishes regarding the guardianship of any children under 18

Wills

When you die, your will specifies how your affairs and body will be handled.  

The use of do-it-yourself will kits may seem cost-effective in the short term, but if they are completed incorrectly, they can complicate the process once you have passed away. If someone challenges the will, your deceased estate (your estate after you die) can be used to pay for legal costs. Professional standards legislation governs solicitors, and they must keep up with changes in legislation and processes that you may not be aware of.

Contact our experienced wills team for a free initial consultation if you wish to avoid the pitfalls of writing your own will or using a will kit. 

The will states:

• Beneficiaries will receive your assets (e.g. bank accounts, personal property, real estate, shares, etc.) 

• Managing your debts

• How your children will be cared for if they are under 18 

• Whether your remains will be buried, cremated, donated to scientific research, etc.

• After you pass away, your executor is responsible for administering your estate. It’s up to you who will be the executor of your will. Make sure your executor knows where to find a copy of your will when you die so they don’t have to look for it themselves.

You should attach a codicil to your will if you wish to specify who will receive your personal property (e.g. jewellery, family heirlooms, vehicles, etc).

Your superannuation is dealt with differently. It has two insurance policies built into it in the event of personal injury or death (life insurance). You nominate a beneficiary or beneficiaries when you establish a superannuation account. The executor of your will be responsible for notifying your superannuation provider of your death and providing them with a copy of your death certificate. You should contact your superannuation provider if you don’t know if you’ve nominated a beneficiary. A financial planner can help you decide whether to roll over multiple accounts into one.

If you have property or estate planning documents overseas or interstate, it is essential that you receive legal advice before you make your will. There are different estate laws in each state and territory of Australia, as well as in other countries. In the event that you pass away, this can have a profound effect on the administration of your estate.

Keeping your original will in a fireproof safe or leaving it with your solicitor is recommended to prevent its loss or destruction.

Testamentary Trusts

Testamentary trusts are created through the terms in your will. You can create a single or multiple testamentary trusts in your will.

Advantages:

• The assets are owned by one person (the trustee), but the benefit derived from them goes to the nominated beneficiaries. As a result, the beneficiary’s assets are protected from adverse action, such as bankruptcy, divorce, personal lawsuits from high-risk occupations, etc.

• Any income, fringe benefits, or franked dividends accrued by a testamentary trust are distributed equally among its beneficiaries. 

• Testamentary trusts are not considered when determining a person’s eligibility for an Australian pension.

• Trustees can be family members, friends, or professionals.

• A testamentary trust can last up to 80 years, which is particularly useful if you have a child who requires ongoing care.

• In your will, you can include a clause allowing the executor discretion to establish a testamentary trust after your death if you are unsure whether to do so. 

Disadvantages:

• In addition to the fee payable to the professional trustee, a testamentary trust has ongoing costs, especially if the trustee is a professional trustee hired to administer the trust. 

• There is full control over the trust and income earned from the trust by the trustee. Assets of the trust can be borrowed, used as security or removed from the trust by the trustee. You must choose a trustee who you can fully trust.

• To ensure that this is the best decision for you and your estate, it is recommended that you seek financial advice from a licensed financial planner. 

• A family trust does not carry over to a testamentary trust. In order to include your family assets in a testamentary trust, you must dissolve the family trust before creating the testamentary trust. Consult your financial planner before making this decision.

How does a will become valid?

In NSW, a will must meet the following requirements:

• Typed or handwritten (handwritten must be legible).

• It is signed by the maker of the will (testator).

• A will must be witnessed by two people and they must sign it as witnesses when it is signed.

• Each page of your will should be signed and any amendments should be initialed.

• If you are a beneficiary, you should not witness the will signing. If the will is contested, you may lose any benefit from the will.

• To avoid accusations of tampering, everyone signing the will should use the same pen.

Deceased Estates

When a loved one passes away, you have to deal with both your emotions and the estate of the deceased person. In Australia, wills and estate law can be complex, especially if the deceased’s assets are in another state or country. The estate administration process can be challenging, so let us help. For a free initial consultation, contact us today.

The Succession Act 2006 (NSW), the common law and equity govern deceased estate administration in NSW. Estate matters are heard by the Supreme Court of New South Wales.

What is the deceased estate?

All of the assets and liabilities (debts) of the estate make up the deceased estate. These assets and liabilities include:

• bank accounts

• building society accounts

• superannuation

• income tax

• real estate

• insurance policies

• debts

• motor vehicles

• artworks 

• collectibles

An estate with a valid Will is administered as follows:

1. Get legal advice from Truth Lawyers.

2. If you are unable to locate the deceased’s will, your solicitor may be able to assist by reaching out to other legal practitioners who may have it. Wills are not registered. 

3. Using the Online Registry, you must advertise your intention to apply for a grant of probate. You must wait 14 days to file your summons for probate after you advertise your intention. As a result, creditors can claim on the estate for any outstanding debts owed to them, and family members can claim family provisions. 

4. The summons for probate must be completed and filed, 

5. Prepare the grant of probate and inventory of property and file them 

6. Attach a copy of the will and the inventory of property to the Affidavit of the Executor

7. If you are filing it yourself, give your lawyer a copy of your application as well as a self-addressed envelope. DO NOT file your original will as you will not receive it back. Make sure you have a copy of the application. 

8. Your self-addressed envelope will be sent to you once probate has been granted.

9. In addition to closing accounts, you will need to notify the Australian Taxation Office (ATO) and obtain a copy of the deceased’s death certificate. 

10. Any taxable income derived before the date of death must be reported on a tax return.

Letter of Administration

When there is no valid will (intestacy), there is no executor named in the will, or the executor of the will has died and no substitute executor has been identified in the will, Letters of Administration are required. For expert legal advice on applying for Letters of Administration, contact our probate lawyers.

Letters of Administration are issued in the following manner:

1. If you are unable to locate a will, or the executor is no longer alive or has passed away, contact us for advice and assistance. 

2. Documents include a copy of the will, any codicils attached to the will, and the death certificate if one exists.

3. Make an announcement of your intention to apply for Letters of Administration through the Online Registry. Before you can file your Summons for Letters of Administration, you have to wait 14 days after advertising your intent to apply.

4. File your Summons for Letters of Administration, draft Grant of Letters of Administration, Affidavit of the Applicant for Administration, inventory of property, original will (if it exists), and death certificate.

5. If there are additional beneficiaries, but they are not included in your application, a Consent to Administration may be required. 

6. Once the Letters of Administration have been approved, you will be notified by the court.

Time limits

A grant of probate or Letters of Administration must be applied for within 6 months of a deceased individual’s death if they are required. In the event of a delay, you must inform the court in the Executor’s Affidavit, or by submitting an Affidavit of Delay to the Supreme Court.  

In order to establish a testamentary trust, you have three years from the date of death. Establishing the trust after that time may result in significant tax complications. 

Those who need to respond to a will due to family provisions have 12 months from the date of death. This includes wives, husbands, de facto partners, children, dependents, ex-partners, etc. A challenge to a will under family provisions does not have a time limit if you are not challenging it. 

Once probate has been finalized, it can be challenged.

Probate process

A grant of probate may be required if you serve as the executor of a will. Probate is not always needed. It depends on the value of the assets and whether any real estate is involved. For expert legal advice from our probate lawyers on whether you need to apply for probate, contact our law firm. 

Probate consists of the following steps:

1. If you have been notified of the death, contact us for advice and assistance.

2. A copy of the will, any codicils attached to the will, and a copy of the death certificate are all necessary documents. 

3. Using the Online Registry, you must advertise your intention to apply for a grant of probate. You must wait 14 days to file your summons for probate after you advertise your intention. As a result, creditors can claim on the estate for any outstanding debts owed to them, and family members can claim family provisions. 

4. The summons for probate must be completed and filed, 

5. Prepare the grant of probate and inventory of property and file them 

6. Attach a copy of the will and the inventory of property to the Affidavit of the Executor

7. If you are filing it yourself, give your lawyer a copy of your application as well as a self-addressed envelope. DO NOT file your original will as you will not receive it back. Make sure you have a copy of the application. 

8. A self-addressed envelope will be sent to you once probate has been granted.

Disputes

A dispute over a will is heard in the Equity Division of the Supreme Court of New South Wales. 

There are several reasons why a will dispute may arise:

• A party believes they are entitled to make a claim (family provisions) 

• Their belief is that the testator was not of sound mind when he made his will

• Undue influence

• Fraud

• Forgery

• There was no knowledge and approval of the contents of the will by the testator

Contesting or challenging a will is only possible if you have an interest in the estate of the deceased. For example:

• In the previous will of the testator, you were listed as a beneficiary

• If the testator did not have a will, you would be considered a beneficiary

• The current will names you as a beneficiary.

In order to challenge or contest a will, you must find out if a grant of probate has been issued. If it hasn’t, you can lodge a probate caveat to prevent probate from being granted. In order to resolve your issue, you will need to file an application with the court. If this cannot be resolved, you will have to file an application with the court.

You should have all the required evidence before contesting a will to ensure a speedy resolution. Contesting a will can be expensive and time-consuming.

Enduring Power of Attorney

In NSW, there are two types of Power of Attorney:

• Power of Attorney

• Enduring Power of Attorney

Power of Attorney

An authority of attorney allows another person to act for you regarding your finances. Depending on how much or how little authority you give that person, the Power of Attorney takes effect as soon as you and your attorney sign it. You can set the length of time the Power of Attorney will last, and you can terminate it at any time. It expires upon your death or when you no longer have the mental capacity to make your own decisions if you don’t set a time limit.

Requirements:

• You must be of sound mind. 

• It is essential that the Attorney you choose has at least 18 years of age and can assist you with your requirements. For example, if you live in NSW, your Attorney shouldn’t live interstate or overseas.

• The document must be signed and witnessed by someone over the age of 18 (not your attorney).

• Forms must be filled out.

If you are concerned about the decisions being made by an Enduring Power of Attorney, you can make an application to NCAT to have the Enduring Power of Attorney reviewed and amended where necessary. For guidance on how to make an application to NCAT, contact our office for a free initial consultation.

Enduring Guardianship

In the event that you are unable to make decisions regarding your healthcare and lifestyle on your own, an Enduring Guardianship authorizes another person or persons to do so. It is up to you how narrow or broad the terms of the Enduring Guardianship are, whether it is agreeing to perform medical tests, placing you in a care facility or terminating life support.

If you do not have an Enduring Guardianship, substitute decision-making applies, as your next of kin does not have legal status in Australia. In the absence of one, you must have an Enduring Guardianship appointed. In other words, your spouse or de facto is required to make a decision, followed by close relatives, friends, etc. Don’t rely on chance when it comes to your care. When you can no longer make your own decision, contact our office for advice about future-proofing your care.  

Requirements:

• If you are not of sound mind, an Enduring Guardian can be appointed by NCAT.

• Enduring Guardians must be over 18 and capable of assisting you.

• Sign it and have it witnessed by an eligible witness, such as a lawyer or court registrar.

• You must sign the document and have it witnessed by an eligible witness, such as a lawyer or local court registrar. You must get your own independent legal advice before signing the Enduring Guardian form if you are asked to be someone’s Enduring Guardian. Signing the form means you consent and are aware of your obligations. 

• Forms must be filled out.

If you are concerned about the care being provided or decisions being made by an Enduring Guardian, you can apply to NCAT to have the Enduring Guardianship reviewed and amended where necessary. Contact our office for a free initial consultation to get advice on how to apply to NCAT.

Disclaimer

In the above information, we do not provide legal advice. If you would like legal advice tailored to your specific legal problem, you should speak with one of our solicitors. The courts deal with each case individually. As a result of COVID-19, there may be court delays.