Roe Mackenzie Lawyers can assist you with all your wills and estates needs and have over 50 years' experience in this area. Our services include:-
- Advice regarding and preparation of wills including complex wills containing testamentary trusts, protective trusts etc;
- Advice regarding and preparation of powers of attorney and enduring guardians;
- Advice regarding and preparation of superannuation death benefit nominations including binding death benefit nominations and death benefit agreements;
- Estate planning including business succession planning;
- Administration of estates on behalf or executors and administrators including applying for grants of probate or letters of administration;
- Administration of estates where the deceased has not left a will (died intestate)
- Will disputes and complex will matters including construction of a will
Please see our Wills and Estates FAQ for more information and do not hesitate to call or email Roe Mackenzie Lawyers for an obligation free discussion about any wills or estates queries you may have.
Wills and Estates FAQ
What happens if I don’t make a will?
If you die without a will the Succession Act 2006 (Act) has a statutory formula for determining who receives your assets. The formula is complicated and you should seek legal advice if you are a relative of a deceased without a will. It is possible that who you thought would receive your assets does not in fact receive them or does not receive all of them and that is why it is so important, even if you are married that you have a valid will in place.
The Supreme Court of NSW normally also needs to appoint an administrator to look after the affairs of the estate when a person has not left a will. This is ordinarily a relative. Once again you should legal advice.
Can I alter my will if I change my mind?
Yes. You are free to alter your will at any time. If your circumstances change, you can and should alter your will. However, you cannot simply make an alteration by, for instance, crossing something out in the original will and writing in your new wishes.
If the alterations are minor, you can make a codicil (a separate document in which you change a provision in your will) but it is usually better to make an entirely new will unless the change is very simple. A codicil must be signed in the presence of two witnesses, in the same way as when you make your will.
What if I marry or divorce?
If you marry it is very important that you make a new will. Generally, marriage cancels any will you have already made, but there are exceptions which are very technical and that you would need to seek legal advice.
If you are divorced or have been separated for any extended period, you should also make a new will, or have a solicitor help you make a formal addition (called a 'codicil') to your existing will. Divorce or annulment will cancel any gift you have bequeathed to your former spouse, and also cancel their appointment as an executor, trustee, or guardian under the will. But it will not cancel any appointment of your former spouse as trustee of property left by you for beneficiaries that include your former spouse's children.
Can I leave my assets to anyone?
Yes, but you should adequately provide for your spouse, de facto partner, children, including those for whose long-term welfare you and your partner have parental responsibility, and other dependants. If you do not, they could legally make a claim to cover their maintenance, education or advancement in life.
Can I see the will?
The Act sets out who can see a will after the death of the deceased. See Section 54.
Those people who are eligible include:
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Any person named or referred to in the will, whether as a beneficiary or not
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Any person named or referred to in an earlier will as a beneficiary
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The surviving spouse, de facto partner (same or opposite sex) or children of the deceased person
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A parent or guardian of the deceased person
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Any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate
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Any person (including a creditor) who may have a claim against the estate of the deceased person.
If you apply to inspect or obtain a copy of the will it must be at your own expense.
Do I need a testamentary trust in my will?
A trust is an ownership vehicle or structure that provides for assets to be legally owned by one person or organisation (being the trustee) but held for the benefit of other individuals or organisations (being the beneficiaries). A testamentary trust usually is simply a discretionary family trust established by will.
A discretionary trust is a vehicle whereby assets are held by a trustee, on trust to be applied at the discretion of the trustee for the benefit of a wide range of beneficiaries. The trustee decides which of the beneficiaries is to receive the benefit from time to time.
The benefits are divided into two classes, income and capital.
Each year the trustee can make a distribution of any income received to the potential beneficiaries. Often the distribution is made to those beneficiaries who are either in need of the income or to whom the income can be distributed on the most tax effective basis.
The capital of the trust (being the substantial assets) can be retained for a maximum period of eighty (80) years or until such earlier time as the trustee decides either to dispose of them or to distribute them amongst beneficiaries. Again, on the distribution the trustee has an absolute discretion as to who receives the assets.
Normally clients prepare and sign at the time of making the will incorporating the trust a letter of instruction to the trustee setting out your wishes and thoughts in respect of the administration of the estate, the retention or disposal of the assets, the distribution amongst the potential beneficiaries and the conditions that you might wish to impose on that. By this method, you give the trustee instructions which can be followed after your death but which do not form part of the will itself.
The following are some advantages of a discretionary trust:
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Flexibility
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Protection of assets
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Taxation
The major disadvantage of a discretionary trust is the ongoing cost of administration such as annual tax agent's fees to prepare accounts and returns.
Roe Mackenzie Lawyers can provide advice as to whether in your particular circumstances testamentary trusts are desirable and if so the likely costs of setting those up.
What is Probate and when is it needed?
Probate is an order from the Supreme Court of NSW stating that the will has been proved to be the last valid will of the deceased, and allowing an executor to collect and distribute the estate in accordance with the terms of the will.
Probate will generally be needed whenever a person owns property in NSW unless that property is owned in conjunction with another person as joint tenants.
Probate is often necessary even where a person did not own property as the holder of an asset (such as shares or a bank account) may not release the asset until they are provided with a copy of the grant of probate.
What steps are involved in obtaining Probate?
1. Locate the original will
2. Publish a notice in the local paper where the deceased resided of the intention to apply for a grant of probate of the will and inviting any creditors to provide details of any accounts which the deceased owed at the time of death.
3. Write to the various organisations and banks to ascertain details of assets and liabilities and bank accounts and their requirements to realise such assets.
4. Prepare the documentation which the executor must sign in support of the application for probate of the will.
5. Lodge that application and obtain a grant of probate.
6. Attend to:-
(a) the realisation and collection of assets;
(b) payment of estate debts;
(c) transfer/transmission of real estate, if any; and
(d) prepare and file tax returns for the estate, if required.
7. Advertise once again in the local paper to ensure that no claims can subsequently be made against the estate.
8. Attend to the distribution of estate assets to the beneficiaries. The distribution cannot take place until the latter of 30 days from the date the notice is published in step 7 or six months from the date of death.
The consequences of not properly performing your duties as an executor can be very serious including exposing yourself to potential personal liability to a person who suffers any loss due to decisions you may make as executor. Roe Mackenzie Lawyers can provide specialist advice to assist you in making sure an executor properly performs their duty.
I have found a document but I am not sure if it is a valid will?
Section 8 of the Act allows for documents that are not a formal valid will according to the requirements in Section 6 to be admitted to probate as the will of a deceased person.
A minimum requirement is that there is a 'document' and that the deceased intended without more for the document to be their last will.
Roe Mackenzie Lawyers have acted for estates in the past where the Supreme Court has had to consider if an informal document is to be admitted to probate as the last will of a deceased. If you are unsure whether a document is a valid will Roe Mackenzie Lawyers can provide you with expert advice.
