Our team at AFL Solicitors is friendly, understanding and meticulous when preparing your Will and estate documents. We provide you with efficient and cost effective solutions for all your estate planning needs.
A Will is not just a formal legal document - it is a document that sets out how your life’s work and your assets will be distributed to loved ones and the causes you care about.
Our main focus is respecting your wishes and most of all keeping your estate out of court after you have passed away.
What is Estate Planning?
Estate Planning comprises the following legal documents:
- Wills
- Appointing Testamentary Guardians
- Appointment of Enduring Guardian
- Appointment of Enduring Power of Attorney
- Statement of Wishes
What is a Will?
A Will is your final say regarding how you would like your Estate distributed once you have passed away. A Will involves a complete assessment of what you presently own, which can include (but not limited to):
- Your house
- Land
- Vehicles
- Bank accounts
- Jewellery
- Clothes
- household goods, and
- Investments (such as shares or cryptocurrency).
What is a Testamentary Guardian?
A Testamentary Guardian is an appointed person or group that cares for your children if you pass away.
In the event that you pass away before your child/ren reach the age of 18, we can help you prepare guidelines for an appointed guardian regarding your wishes for their care and upbringing.
What is an Enduring Guardian?
An Enduring Guardian is an appointed person or group of people that make decisions for you when you are incapable of making your own decisions and is only operable for the period of incapacity. Your enduring guardian makes decisions related to your health, lifestyle and well-being.
What is an Ensuring Power of Attorney?
A Power of Attorney is an appointed person or group that takes care of your legal and financial affairs when you are temporarily or permanently unable to do so yourself.
What is a Statement of Wishes?
A Statement of Wishes is a document that outlines detailed instructions to your Executor, family and friends as to your wishes regarding your funeral and memorial services.
Why do you need a lawyer?
When it comes to drafting your Will, every word and phrase used is critical especially if your estate planning documents are contested. Non-specialist lawyers can miss all the small nuances that can cost you money and give your family or other beneficiaries stress after you are gone.
Engaging a lawyer will assist you in getting your Will right the first time and if contested after you are gone giving your chosen beneficiaries a good defence to any estate claims.
We will:
- Provide you with legal advice about the rules and regulations associated with Wills, including how to deal with assets held jointly and family trust assets.
- Ensure the execution of well-written, detailed, clear and accurate documents.
Ensure legal formalities are satisfied.
Superannuation
Other factors that are important to consider in your estate planning is what you want to have happen to your Superannuation especially given that generally, superannuation does not form part of your estate.
The trustee of your superannuation fund is a representative from the company that holds your superannuation. They will be the person who distributes the proceeds of your superannuation.
Superannuation can be dealt with separately from your estate through the use of a valid Binding Death Benefit Nomination (BDBN).
A valid nomination must have the following characteristics:
- Nominations may only be in favour of superannuation dependants or your estate (via your legal personal representative)
- You must set out the proportion or proportions of the benefit payable to each of your superannuation dependants
- Nominations must be made to the trustee of the superannuation fund in writing
- They must be signed and dated by the member in the presence of two witnesses who are both over the age of 18 years and who are not nominated as beneficiaries
- They must contain a declaration signed and dated by the witnesses stating that the notice was signed by the member in their presence, and
- The notice must be sent to the trustee of the superannuation fund and is not valid until it is received and approved by the trustee.
Without a BDBN, the trustee of the superannuation fund has the discretion to pay the superannuation death benefits to any one or more of your superannuation dependants and/or your estate (via the legal personal representative) in the proportions it sees fit as permitted by both the trust deed of the superannuation fund and Australian superannuation laws.
There will also be different tax implications depending on the ultimate recipient of your superannuation death benefits.
Self-managed superannuation
It is important to receive proper legal advice for your estate and your Self-Managed Super Funds (SMSF). For example, if you were to state in your Will, that your SMSF are to go to your children instead of your partner or next of kin and you do not have a BDBN your children will unlikely receive these funds.
If you want to make specific instructions as to where the proceeds of your superannuation account should be paid on your death, it must be in the form of a valid BDBN as per the characteristics outlined above.
Contact us
Estate planning can be complex and involved. Regardless of your situation, specialist Wills and estate planning advice is essential.
ContactAFL Solicitorsto discuss your particular situation on 02-9892-2298 or via our contact form.
Family Provision Claims
If you have been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the deceased estate. This is known as a family provision claim.
Who is eligible to make a family provision claim?
The law governing eligibility is derived from section 56 Succession Act 2006 (NSW)
People who may be entitled to claim include those who had a relationship with the deceased, such as:
- Wife or husband
- De-facto or same-sex partner
- Former spouse or de facto partner (especially if there was no binding financial agreement after separation or divorce)
- Child, stepchild or grandchild
- Parent of a child of the deceased
- Parent, brother or sister
- Someone who was financially dependent on the deceased at the time of the deceased death
- Carer of the deceased
Is there a time limit?
The law provides that an application for a family provision order must be made no later than 12 months after the death of the deceased person. However, in certain circumstances, we might be able to obtain leave from the Court for an extension of the time limit so please contact us to discuss your situation.
- Your house
- Land
- Vehicles
- Bank accounts
- Jewellery
- Clothes
- household goods, and
- Investments (such as shares or cryptocurrency).
What the Court takes into account and why you need a lawyer
Eligibility
The Court will take into account whether the applicant making a family provision claim is found to be an eligible person that has a legal right to the estate or any part of it. However, it is important to note that just because a person may have a legal right to make a claim does not mean that the Court will make an order for family provision. This is why it is critical to have your claim assessed by one of our experienced estate lawyers.
Factors Warranting
Some eligible persons such as dependant grandchildren and members of the household as well as those in a close personal relationship with the deceased must prove to the Court factors that warrant the making of their application under chapter 3 of the Succession Act 2006 (NSW).
The Court in deciding whether there is factors warranting will consider the nature and quality of the relationship with the deceased including the degree of closeness. In the case of children or grandchildren the extent to which they have been treated as a child of the deceased.
Given that the statute does not define factors warranting the making of an application for family provision we can advise you according to case law as to whether your status as an eligible person would generally be regarded as a natural object of testamentary recognition by the deceased which could give rise to a successful claim for family provision.
How do I make a family provision claim?
Contact AFL Solicitors so we can assess your claim and discuss the particular circumstances of your claim.
We will advise you if your claim is worth continuing and under your instruction will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved we can then lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court.
Failing this, we will proceed to a court hearing where the evidence will be presented and the Court will make a decision.
Conclusion
The above information is only a brief examination of what will be considered by the Court in determining a family provision claim. Our estate lawyers can assist you with a more detailed analysis of the legal principles involved, provide you with advice that is specific to your circumstances, and offer you reassurance and expertise to guide you every step of the way.
Contact us
If you have not received a gift in a will to which you believe you are entitled, or would like to discuss your circumstances with one of our expert estate lawyers please contactAFL Solicitorson 02-9892-2298 or via our contact form.
Probate & Deceased Estates
At AFL Solicitors we understand both the emotional aspects and the legal aspects of dealing with a loved one’s estate.This is why we are focused on supporting you to make the administration of your loved ones estate as stress-free and smooth as possible.
The administration of a deceased estate can be confusing and intimidating for executors and beneficiaries. We know the legal terrain so you can havepeace of mind while grieving for your loved one while we handle the administrative paperwork and legal processes.
We treat you like a person, not just another case and care about where you are from and what you are going through.
Why do you need a lawyer?
Understanding your role and responsibilities as executor is crucial to the lawful administration of your loved ones estate.
The responsibilities of an executor looking after a deceased person’s affairs can be challenging and overwhelming, especially when there is a simmering family dispute.
How we will help you
Our specialist probate & deceased estate lawyerswill take executors or beneficiaries through the steps required to administer a deceased estate by:
- Advising executors and trustees in regard to their duties and rights
- Advising upon the need for a Grant of Probate
- Prepare and assist you to complete the documents needed to apply for probateof the Will in the Supreme Court
- Advising upon the validity and interpreting the Will of the deceased in terms of estate laws including consideration of issues concerning testamentary capacity and undue influence
- Assist you to identify, locate and collect the deceased’s assets
- Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
- Informing government bodies including Centrelink and Veterans Affairs
- Obtaining valuations of estate property
- Identifying estate liabilities
- Assisting dependants with superannuation death benefit claims
- Advise you about the legal order in which debts must be paid and the assets distributed
- Assist you to draw up the statement of account and distribution report for the beneficiaries
- Selling or transferring estate property including estate auctions
- Paying estate debts including mortgages, funeral costs, and testamentary expenses
- Distributing bequests and inheritances to beneficiaries
- Arrange for advice to be given to you on the possibility of any tax liability
- Organising information for estate tax returns
- Liaising with solicitors and accountants from other jurisdictions in administering the deceased’s worldwide assets
- Contesting wills and defending estate litigation in the Supreme Court
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Advising executors and eligible persons about claims for family provision orders under chapter 3 of the Succession Act 2006(NSW)
o Advising potential claimants of their rights in relation to a claim for family provision and acting for them throughout the claim process
o Acting for executors in defending and resolving claims made against the estate by eligible persons including spouses and de facto partners, former spouses and partners, adult children, grandchildren dependants and other eligible persons - Drafting and finalising documentation (including Deeds of Family Arrangement) recording settlement reached between the estate and a claimant
- Family mediation and negotiation
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Dealing with intestacy (where there is no Will)
o Drafting and lodging applications for Letters of Administration where the deceased did not leave a valid Will and their estate passes in accordance with the rules of intestacy under chapter 4 of the Succession Act 2006 (NSW)
o Explain the legal order of distribution of the estate under intestacy rules - Advising in regard to family and testamentary trusts (a complex area of law)
- Administering trust funds.
Conclusion
The above information is only a brief examination of the administration of a deceased estate. We can assist you with a more detailed analysis of the legal principles involved, provide you with advice that is specific to your circumstances, and offer you reassurance and expertise to guide you every step of the way.
Contact us
If you are an executor or beneficiary and would like to discuss your circumstances with one of our specialist probate & deceased estate lawyers please contactAFL Solicitorson 02-9892-2298 or via our contact form.