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Have you been left out of a Will?

If you feel like you have been unfairly provided for in a Will, there are avenues to seek to change this.

A Will stands as a legal document that allocates a person’s assets upon their passing. It serves as a testament to their wishes, however upon execution it can cause confusion if those expecting to receive something have been left out of the Will. With expertise and experience in both the creation and contestation of Will and Estate documents, the team at Maguire & McInerney can guide you through your options, helping to ensure that your future is secure. Whether you are looking to make a Family Provision Claim, contest a Will, or have questions about the process, our team can help.

Family Provision

Family Provision refers to the legal process whereby certain eligible individuals contest a Will to seek adequate provision from the deceased person’s estate. The primary objective of a Family Provision claim is to ensure fair distribution of funds and assets, especially for individuals who may not have been adequately provided for in the Will. When certain people feel like they haven’t been looked after well enough in a Will, they can contest it, with Australian laws permitting certain parties, known as ‘eligible persons’ including spouses, children and dependents, to make a claim under family provisions.

These laws aim to balance the deceased’s testamentary freedom with the obligation to ensure reasonable financial support to deserving claimants based on their needs and relationship with the deceased. The Maguire & McInerney team have years of experience, and can help you understand the rules, timing, and legal details as well as navigate the process effectively.

Contested Wills

Contested Will matters refer to disputes or challenges arising when someone challenges the validity or terms of a Will. These disputes may arise due to doubts about the mental capacity of the deceased at the time of making the Will, allegations of undue influence or coercion, or issues regarding the distribution of assets. Contesting a Will in Australia involves a structured legal process that includes gathering evidence, engaging in mediation or negotiations, and potentially proceeding to court if a resolution cannot be reached prior. The nature of relationships with the deceased, financial needs, and the validity of the Will all play significant roles in these matters. Understanding the legal proceedings and seeking expert legal guidance is crucial to navigate these complex and emotionally challenging situations effectively.

Steps To Get Started

Reach Out

Whether it’s phone, email, or dropping by our Wollongong office, book a date to sit down with one of our team.

Make a Plan

Understanding where you are coming from, and what you are looking to achieve means that our lawyers can craft the best course of action.

Take Action

Whether it’s litigation or mediation, our team of experts have decades of experience in and outside of the courtroom and are committed to reaching the best possible outcome.

FAQs

Applying for Letters of Administration involves a legal process typically used to manage the estate of someone who has passed away without leaving a valid will (intestate). Letters of Administration is a document issued by the Supreme Court that grants authority to the administrator (the person appointed by the court) to manage and distribute the deceased person’s assets and liabilities. The process can vary by jurisdiction, so it’s important to consult the laws and regulations specific to your location.

As a general overview the steps involved are as follows:

1. Confirm Eligibility: Before applying for Letters of Administration, you need to ensure that you are eligible to be appointed as an administrator. In most cases, immediate family members (spouse, children, parents) are given priority. If no eligible family member is available, the court may appoint another suitable person.

2. Gather Necessary Documents: You will need to gather documents such as the death certificate of the deceased person, their identification documents, information about their assets and liabilities, information about the eligible beneficiaries entitled to the estate pursuant to the intestacy laws of your jurisdiction and any other relevant documents.

3. Apply to the Court: You will need to file a Summons and Affidavit with the appropriate court. This may involve filling out specific forms and providing information about the deceased person, their estate, and your relationship to them.

4. Pay Fees: There are usually filing fees associated with applying for Letters of Administration. The fees can vary based on your location and value of the estate.

5. Inventory and Valuation: As the administrator, you will need to create an inventory of the deceased person’s assets and liabilities. This includes valuing their properties, bank accounts, investments, debts, etc.

6. Issuance of Letters of Administration: If the court approves your application, they will issue Letters of Administration granting you the authority to manage the deceased person’s estate.

7. Settle Debts and Taxes: You will need to use the estate’s assets to pay off any outstanding debts and taxes owed by the deceased person.

8. Distribute the Estate: Following the settlement of debts and taxes, you will distribute the remaining assets to the rightful heirs or beneficiaries according to the laws of intestate succession in your jurisdiction.

It’s crucial to consult with a legal professional or an estate lawyer in your jurisdiction to get accurate and up-to-date information regarding the specific process for applying for Letters of Administration. Laws and procedures can vary widely, and it’s important to ensure that you are following the correct steps to manage the estate appropriately and legally.

The duration of the probate process in New South Wales (NSW), can vary significantly depending on various factors. Probate is the legal process of administering a deceased person’s estate, which includes validating the deceased’s will and distributing their assets according to the will’s instructions.

The time it takes for probate to be granted can depend on factors such as the complexity of the estate, the accuracy and completeness of the documentation provided, any disputes that may arise, and the workload of the local probate registry. On average, it could take anywhere from a few months to a year or more for probate to be granted in NSW.

It’s important to note that probate timelines can change over time due to factors such as changes in legal processes, court procedures, and administrative efficiencies. It’s recommended to consult with a legal professional or check the most up-to-date information from the Supreme Court of New South Wales or a reliable legal source for the latest information on probate timelines in NSW.

After probate is granted, the administration of the deceased person’s estate enters a new phase. Probate is the legal process by which a court validates a deceased person’s will and oversees the. distribution of their assets according to the terms of the will. Once probate is granted, here are the typical steps that follow:

1. Notification of Beneficiaries and Heirs: The executor is responsible for notifying beneficiaries and heirs.

2. Payment of Debts and Taxes: The estate’s debts and taxes, including any outstanding loans, bills, and taxes owed by the deceased person, must be paid using the assets from the estate. This might involve selling assets to cover the liabilities.

3. Distribution of Assets: Once debts, taxes, and other expenses have been settled, the remaining assets can be distributed to the beneficiaries named in the will. This distribution must align with the deceased person’s wishes outlined in the will.

If you’re involved in the probate process, it’s recommended to consult with legal professionals who specialise in estate law to ensure that you fulfil your duties and responsibilities correctly.

Our Probate, Will & Estate Planning Team

Brendan Pearce

Partner

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Enquire online, or call us today, and we will help you explore all your options. Your enquiry is completely confidential.