An effective estate plan may require you to consider a range of matters, such as:
- Preparing for the inevitable by creating a valid Will to appoint an executor and determine who receives your assets when you die.
- Planning for the unforeseen by having a Power of Attorney/Enduring Power of Attorney in place so your financial affairs can be dealt with by somebody you trust for your convenience, as you age, or if you are incapacitated.
- Appointing somebody you trust to make certain health and personal decisions for you if you are incapacitated.
- Ensuring your estate maintains value – considering the financial impact of an inheritance on your beneficiaries and distributing assets in the most tax-effective way.
- Protecting assets and vulnerable beneficiaries through testamentary trusts.
- Minimising the potential for estate disputes and family provision claims by seeking legal advice and implementing recommended strategies.
- Ensuring that appropriate succession arrangements are in place to deal with farming and business interests through future generations.
We can help you create an effective estate plan for your future and can also assist with the administration of the estate of a deceased family member or loved one. We work closely with our clients to understand their individual circumstances and needs.
Making a Will
An estate plan typically starts with the preparation of a Will to document how you want your estate managed after you die. Your Will appoints one or more executors to manage your estate and sets out how your property will be divided amongst your beneficiaries. Your Will needs to be clear, unambiguous, and legally binding.
Your executors have the legal and administrative task of sorting out your assets and debts, following the terms of your Will, and finalising your affairs.
In some cases, a testamentary trust can help protect vulnerable beneficiaries who may be incapable or at risk of managing their inheritance. Trusts can also help manage the taxation implications of transferring certain assets to beneficiaries.
Once your Will has been prepared, it is important to review it regularly. Major changes in your personal or financial circumstances, such as marriage, divorce, separation, the birth of a child, the accumulation or disposal of major assets, or health issues, are all reasons to review your Will and make any necessary changes.
Dying without a Will
Dying without a Will also means that your next of kin will usually have to apply to the Court for letters of administration before dealing with your estate, resulting in additional work, stress, and costs for those you leave behind.
Estate Administration – Executors & Administrators
The administration of a deceased estate in New South Wales is governed by the Succession Act 2006 and the Supreme Court Rules 1970. If you have been appointed an executor, you have the responsibility of managing a deceased person’s estate according to the terms outlined in their Will and the law.
An executor may need to apply to the Supreme Court for a grant of probate. This is a grant that recognises the validity of the Will and authorises the executors named in it to deal with and distribute the estate assets.
If someone dies without leaving a Will, a family member will usually have to apply to the Supreme Court for letters of administration before dealing with the estate.
Executors and administrators must identify the deceased’s assets and liabilities which will involve collecting and reviewing bank statements, property deeds, and other financial documents. They will also need to notify any creditors of the deceased person’s estate and settle any outstanding debts. Once all debts have been paid, the estate may be distributed to the beneficiaries named in the Will or in accordance with the laws of intestacy.
How a Solicitor can help with the Administration of an Estate
Estates vary in complexity and the role of an executor or administrator can be challenging, so it is a good idea to get advice from a solicitor. We can help you navigate the legal process of applying for probate or letters of administration, liaise with various third parties (banks, superannuation fund managers, share registries, etc.) and distribute the estate to the beneficiaries. We can help you navigate uncertainties, deal with any third-party claims, and manage and resolve any disputes. The cost of this legal advice is usually covered by the estate.
If you need assistance, contact one of our lawyers at [email protected] or call 02 6885 0025 for expert legal advice.
