What is “testamentary capacity”? The legal test for assessing testamentary capacity was outlined almost 150 years ago in a case called Banks v Goodfellow (1870) LR QB 549. The test has four (4) aspects to it, namely: 1. That the willmaker understands the nature of the act of making a Will and its effects, 2. […]
Smooth and stress free Estate Administration
If you are the Executor of a Will or the spouse or next of kin of someone who has died without a Will, navigating these circumstances can be difficult and confusing.
We deal with these issues on a daily basis.
Administering a Deceased Estate
When a person dies their assets (after liabilities and taxes) pass to the beneficiaries named in their Will or if there is no Will, the persons entitled pursuant to the Rules of Intestacy. The Estate is typically administered by the Executor(s) named in the Will.
It is the Executor’s responsibility to:
- identify the deceased person’s assets and liabilities,
- obtain a Grant of Probate or Letters of Administration, when necessary,
- call in the assets and pay the liabilities (and taxes) of the Estate,
- deal with any claims made against the assets of the Estate by creditors and/or people challenging the Will under the Succession Act,
- interpret the Will and identify beneficiaries, and
- distribute the Estate’s assets in accordance with the Will or Rules of Intestacy (where there is no Will).
The role of the Executor is important, however, many of the tasks and responsibilities of the Executor should be performed by or with the assistance of a Solicitor. This is because the administration of the Estate carries risk of personal liability for the Executor and will often involve the consideration of complex legal issues.
Frequently Asked Questions
What is a Grant of Probate?
Probate is an Order made by the Supreme Court of New South Wales authorising the Executor to deal with the assets of an Estate in accordance with the Will or Rules of Intestacy (where there is no Will).
When is Probate Required?
Probate is required if the Estate includes:
- Real Estate, and/or
- Bank Accounts, Shares or Superannuation Benefits with balances of over $15,000.00 (depending on the institution).
What if there is no Will?
Rules exist under the Succession Act that dictate how the Estate assets are to be distributed where there is no Will (‘Rules of Intestacy‘). Usually the spouse or next of kin will need to apply to the Court for the grant of Letters of Administration to authorise them to administer the Estate.
How should Funeral Expenses be paid?
If the deceased person holds money in a bank account the bank will typically release funds in the form of a cheque in favour of the Funeral Home in payment of funeral expenses on receipt of a tax invoice and Death Certificate without the need for Probate. This can occur within days of the Funeral service. We can arrange this for you if you prefer.
What if the Will is not held by Roberts Legal?
You do not need to go to the Solicitor who currently holds the Will for assistance in relation to administering the deceased person’s estate. We can uplift the Will from the Solicitor holding it at no extra charge.
Call now to arrange a consultation with one of our Estate Lawyers
1300 553 343