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Probate & Estate Matters

After a person dies, someone needs to look after their property and finalise their financial and legal affairs. This is typically referred to as estate administration. If you have recently lost a loved one and need help administering the estate, our compassionate team will provide guidance and reassurance to help finalise matters while ensuring your duties as executor or administrator are upheld.

Executors and administrators

An executor is the person appointed under a Will to deal with the affairs of somebody who has died.

If the deceased person did not leave a valid Will, the next of kin will usually be responsible for administering the estate and may need to apply to the court for letters of administration. Dying without leaving a Will is referred to as dying intestate. In such cases, the deceased person’s assets are distributed according to a statutory formula determined by the relevant laws in each jurisdiction.

Executors and administrators have significant legal responsibilities and often need to deal with matters that are outside their areas of expertise. For example, they may need to consider the tax implications on the sale or transfer of assets, the order of payment of debts, or deal with a family provision claim being made against the estate. We can help you through the legal process, providing advice and guidance to help carry out your duties, and to ensure the estate is administered as smoothly and efficiently as possible.

Probate and letters of administration

Probate is a grant made by the Supreme Court that ‘proves’ the Will of a deceased person and authorises the executor to deal with the assets. The requirement to obtain probate generally depends on the size of the estate, the type of assets, and how they are held. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.

A grant of letters of administration may be required when a person dies intestate. On application, the court will appoint an administrator, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

Will challenges and contests

If you find yourself involved in an estate dispute, or left out of a Will, our knowledgeable team can advise you of your legal position and will endeavour to resolve your matter without expensive and lengthy court proceedings.

The validity of a Will may be challenged on the basis that it is void for lack of formality (not correctly signed/witnessed), lack of mental capacity (the testator was not of sound mind when the Will was made) or because the Will was made by the testator under duress or in fraudulent circumstances.

Family provision claims

A family provision claim may be made by an eligible person seeking a share or greater share from the estate of a deceased person. If you are eligible and can show that the deceased person failed to make adequate provision for your proper maintenance, education, and advancement in life, you may be able to bring a claim.

Eligibility criteria varies between different jurisdictions but typically includes a spouse, former spouse, de facto partner, or child of the deceased, or certain individuals who were in a close personal relationship with the deceased or who were dependent on the deceased at the time of death. Strict timeframes apply for making claims, so it is important to obtain legal advice promptly.

Family provision claims may proceed to court, but many are settled through negotiation and mediation. A successful claim can result in the terms of a Will or distribution of an intestate estate being altered in favour of the claimant.

If the matter proceeds to court, various factors will be considered in determining if the claim is successful. These include, but are not limited to:

  • the claimant’s financial circumstances;
  • the financial situation of the beneficiaries;
  • the future needs of the claimant;
  • any mental or physical conditions or disabilities of the claimant;
  • any obligations the deceased owed to the claimant.

An executor may need to defend a family provision claim made against the estate. The executor has a primary duty to uphold the provisions of a Will however must also ensure that estate assets are preserved and may need to consider a justified claim that is likely to succeed. Legal guidance in such circumstances is always recommended.

If you need assistance, email [email protected] or call 07 3855 8880 for a no-obligation discussion and for expert legal advice.