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Our Wills and Estate Planning Lawyers think that safeguarding and protecting your assets is critical to ensure that your loved ones are taken care of in the event of your incapacity or death. Having a Will is a crucial first step towards putting your affairs in order.

Although thinking about your Will can be intimidating, it is a vital activity that should be taken seriously. A well-written Will can safeguard those you love and care about, as well as make the process of administering your estate less stressful for your family and loved ones.

Your family will definitely face difficulties if you die without a Will. If you pass away without leaving a Will, you are considered to have died intestate. If this happens, your estate will be distributed according to state law, which may not be in the way you would have preferred or to the people you would have intended to benefit from your estate.

Our experienced Wills and Estate Lawyers take a holistic approach to your situation and can assist you with drafting a Will and estate planning to ensure that those you care about are provided for.

Is your will current and correct?

Nothing ruins an estate plan like a lack of clarity in a will. The structure for your estate is provided by key legal papers such as your will, testamentary trust, power of attorney, and guardianship. These documents assist you in protecting your possessions and family.

You should re-evaluate your will if you made it when you were younger. Even if your goals and ambitions remain the same, your assets are likely to have altered. You may also need to update the beneficiaries or executors of your will.

We recommend that you examine your will once a year to ensure that it is always up to date. You’ll have a regular time to assess your goals, see if you’re on track, and make any required modifications if you schedule a yearly review.

Should I make a testamentary trust part of my estate plan?

Including provisions in your will to establish a testamentary trust can benefit your beneficiaries if you want to preserve your inheritance. The assets of the estate might be split among the beneficiaries using a testamentary trust. The assets will remain part of the estate, which means they will be safe from a lawsuit or divorce. It also allows you to provide youngsters under the age of 18 the earnings from those assets. This can save you a lot of money over the course of several years.

What goes into making an estate plan?

Make sure you leave your loved ones with the least amount of financial hardship possible when you die. If you arrange your estate, your family will have a simpler time distributing your assets and taking over your duties.

The following are the most important considerations for your estate:

• What asset will go to whom?
• What are the tax consequences for the recipients of those assets?
• Who will be the executor(s)?

How often should my estate plan be updated?

You should evaluate and update your estate planning on a regular basis, and make adjustments as needed.

The following events will take place:

• Marriage\sDivorce
• Children are born.
• Getting ready to retire
• Assets have changed significantly.
• Beneficiaries’ marriages, lifestyles, or independence have changed.
• The death of someone you named in your will or trust

Not keeping your estate plan current can have unfavorable consequences. An ex-spouse, for example, may inherit a portion of your estate while your current spouse receives little to none.

What exactly is the function of an Executor?

Appointing an Executor is a significant decision because they are tasked with a slew of tasks following the death of the Will maker. Here are only a few examples:

• Disposing of the body, obtaining a death certificate, and locating the Will (if there is one) are all important tasks (if any).
• Obtaining a Grant of Probate for the deceased’s Will is a complicated process.
• Obtaining access to the deceased’s assets.
• Taking care of the debts of the deceased’s estate.
• The distribution of the estate.

Disposal of the body, death certificate, and Will

A prevalent misconception is that the deceased’s family is responsible for the body’s disposal. As a practical matter, unless the Will expressly states otherwise, the Executor (or, if there are more than one, the Executors jointly) is in charge of making burial or cremation arrangements for the deceased. Unless the Will clearly directs that the body be buried, the Executor is free to dispose of the body in any manner they deem appropriate at their discretion.

Generally, funeral homes will apply for the Death Certificate through Service NSW as part of their services; however, the Executor may also be responsible for this process on their own time.

It is critical to locate the deceased’s final Will and Testament, which appoints the Executor, before beginning the process of administering the deceased’s estate. When a Will has been made, it is likely that it has been communicated to the Executor(s) as to where the original Will is held, which is normally in a secure custody facility at the deceased’s solicitor.

Obtaining a Probate Grant

If a person dies intestate, an administrator must file a request for a Grant of Letters of Administration (without a valid Will). Executors must get a Grant of Probate from the Supreme Court of their respective jurisdiction before proceeding (for example, the Supreme Court of New South Wales).

Invoke the assets of the deceased.

After the Executor of the deceased’s Will has been granted Probate, he or she must begin administering the estate by calling in and gathering all of the deceased’s assets (not held jointly with another person or entity) as they pass and become vested in the Executor.

The manner in which such assets are brought into the estate is dictated by the type of asset and the manner in which it was owned by the deceased at the time of his or her passing. It is typical for assets to be collected to require the production of documents relating to the deceased’s accounts, property, shares, and dividends.

An Executor may be required to deal with claims brought against the estate by potential claimants, such as claims by beneficiaries for greater provision or claims by third parties claiming provision from the deceased’s estate (known as a family provision claim), as well as claims brought against the estate by third parties seeking debt recovery for alleged debts owed by the deceased during their lifetime.

Paying the deceased’s estate’s debts

Once all of the deceased’s assets have been called in, the Executor is responsible for ensuring that all outstanding debts and liabilities of the deceased are paid (for example, unpaid accounts or taxes). These should not come as a surprise to the Executor in the majority of situations because the debts or liabilities were disclosed to the Court when the application for a Grant of Probate was filed. Cremation costs, legal fees, and other testamentary expenses are all regular debts owed by the estate of a deceased person.

Dealing with the estate’s debts can be complicated depending on the nature of the estate, and it may be necessary for the Executor to seek independent financial assistance in addition to legal guidance when evaluating the validity of, and the sequence of priority in paying, such debts. In some cases, it may be necessary for the Executor to seek independent financial assistance in addition to legal guidance. This is done in order to safeguard the estate from potential creditors who may seek legal recourse against it for failure to pay a debt owed.

In this complex area of the law, our Wills & Assets Lawyers have extensive knowledge and experience, and they can provide specific legal advice on administering the deceased’s estate and paying off any outstanding obligations.

The distribution of the estate

It is possible to distribute the estate’s assets to its beneficiaries after the estate’s assets have been called in and the estate’s liabilities have been paid off.

Interim payments to beneficiaries[i] are permitted in some circumstances by an Executor, provided that the Executor has taken reasonable steps and obtained appropriate legal advice from a Wills & Estates Lawyer before making such distributions. It doesn’t matter what happens, the Executor is responsible for maintaining a record of the assets’ distribution to beneficiaries, including any receipts and expenses associated with the transfer of the asset to the beneficiary.

After the estate’s obligations have been met, in some situations, the assets can be divided without the requirement for Probate, and as a result, they can be dispersed according to the deceased’s Will after the estate’s obligations have been met. Nonetheless, if a Grant of Probate is required, the Executor is also required to post an Intended Distribution Notice before distributing any assets from the estate.

In the transfer of property, whether real or personal, different regulations will apply depending on the type of asset being transferred. As a result, it’s vital to seek legal assistance before carrying out your duties as an Executor.