The Role of Wills and Estate Lawyers in Sydney, NSW
It’s an inevitability that life will one day come to an end. Wills and estate planning lawyers are here to provide peace of mind through legal services encompassing estate law, estate planning, enduring guardianship, probate, letters of administration, or contesting or challenging a will.
At Empower Wills and Estate Lawyers, one of our solicitors is here to help set up your estate for the long term, protecting your hard-earned assets for future generations.
Wills and Estate Planning: What is an Estate Plan?
In New South Wales, estate planning documents can include legal documents such as wills, business succession plans, enduring power of attorney and enduring guardianship forms. Lawyers are best placed to provide advice on all your estate matters.
Having an estate plan ensures that you can make your own decisions about how your estate is distributed. It is the best means possible of ensuring your estate is divided up in accordance with your wishes.
Deceased Estate Administration: What Is Probate and What Is the Probate Process After Someone Has Passed Away?
Probate is a court order, granted by the Supreme Court of NSW which confirms a person’s last will as valid, and grants power to the named executor to administer the estate, including distributing the estate to the nominated beneficiaries in the will.
A probate lawyer can assist with applying for probate (where there is a will) or letters of administration (where the deceased died without a will).
When a person dies without a valid will, otherwise known as dying ‘intestate’ the court will not grant probate, but rather grant Letters of Administration to an administrator (usually a close relative or next of kin) which grants power to the Administrator to administer the estate, including distributing the estate in accordance with the rules of intestacy.
Contact our team of wills and estate lawyers today if you have any questions regarding a grant of probate or letters of administration.
Testamentary Trusts: What is it and who is Responsible for Managing it?
A testamentary trust is a trust established by a will, that comes into effect upon the person’s death by operation of their will. It is a legally binding estate planning structure that allows a person to provide for a future beneficiary, without giving them direct access to their bequest.
A person may wish to establish a testamentary trust to access taxation advantages or to protect the estate assets from risks relating to the financial affairs of a particular beneficiary, for example bankruptcy, creditors, divorce or gambling or drug habits.
The nominated trustee (or trustees) administer the trust. They hold the assets on behalf of the specified beneficiaries, and if the testamentary trust is a discretionary trust, the trustees will have discretion on how to distribute the trust, although all trustees must act in the best interests of the beneficiaries.
Wills and Estate Litigation: What To Do When an Estate Dispute, Family Provision Claim or Will Contest Claims Arises
The distribution of an estate may not go smoothly. Often, people have reason to challenge or contest a will that they believe is invalid or unfair.
Challenging a will means to take issue with the ‘validity’ of the will itself, including circumstances surrounding its origin, execution, and its meaning (otherwise referred to as its ‘construction.’)
Contesting a will means a person takes issue with how much (or how little) they receive within a will. In NSW, a person may bring a claim against the estate under section 59 of the Succession Act 2006 (NSW) for a share, or larger share, of an estate to which they believe they are entitled, if they satisfy certain criteria. This is referred to as a ‘Family Provision Claim.’
Notwithstanding these core differences, in practice, both claimants will usually have the same objective – to secure a larger share of the estate, which an experienced estate lawyer can advise on.
Enduring Power of Attorney and Enduring Guardian: What Are They and Why Are They Important?
A power of attorney is a legal document that allows you to appoint a trusted person to make financial and legal decisions on your behalf. It can operate while you have capacity, for example, if you go for a lengthy trip around the world. Where the document is ‘enduring’, it will continue to operate after you lose the capacity to make decisions yourself due to serious illness or injury or commonly, dementia or Alzheimer’s disease.
An enduring guardianship form on the other hand, is a legal document that allows you to appoint a person to make the decisions around your care, lifestyle, and health, in the event that you lose capacity to make the decisions yourself. Sometimes, people suffering serious illness or injury are unable to make decisions for themselves, so making an enduring guardian can help ensure you have a trusted person acting on your behalf when needed.
A enduring guardian has the power to make decisions such as where you live (i.e. at home or in aged care), what services you require for your care, and what medical treatment you receive.
Why it Pays to Have Empower Wills and Estate Lawyers On Your Side
Proven Track Record of Winning Cases
We consistently deliver successful results for our clients. Our client satisfaction is evident through our word of mouth referrals which are now our largest source of new clients.
High Level of Client Care and Professionalism
We understand that the death of a family member or loved one can bring grief and heightened emotions. We acknowledge that inheritance claims can compound this grief and cause or deepen personal or family conflict. We provide dedicated client care, tailored to each client’s particular circumstances, to support them through the process whilst working together to deliver the best results.
*Whilst a client subject to a “no win no fee” agreement will not have to pay our fees until and unless they achieve a successful outcome, the client is still liable to pay disbursements and barrister’s fees throughout the course of the matter. Whether we can offer a “no win no fee” agreement will depend on the facts and circumstances of each case.
No Win, No Fee
In some cases we can offer clients a Conditional Costs Agreement, otherwise referred to as a “no win no fee” agreement. A “no win no fee” agreement means that a client will not have to pay any of our fees unless and until a successful outcome is achieved*.
Experts in Our Specialised Area of Law
Our inheritance lawyers specialise in will and estate disputes and assist clients to claim or protect their interests in an estate through a combination of expert legal advice, representation, and strategy.
How Expert Wills and Estate Lawyers Sydney Can Assist by Providing Wills and Estates Services and Legal Advice
When making a last will and testament, it is crucial to have experienced wills and estate lawyers on your side, to help you through what can be a stressful time.
Similarly, the loss of a loved one can provoke many questions about the fair way to access or distribute an estate, or who should apply for a grant of probate.
Don’t leave it too late, when you can no longer make decisions about your own future or the control of your hard-earned assets. Contact our wills lawyers and probate and estate lawyers today.
If you have a question about the best way to finalise your estate plan, or if you are an executor of an estate and would like to discuss probate or letters of administration, contact our estate and probate lawyers today. A lawyer can provide assistance in relation to all your wills and estate legal affairs.
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Frequently Asked Questions
What is involved in estate planning?
Estate planning may include any of the following: constructing a legally-binding and valid will, creating a business or estate succession plan, or the formation of a testamentary trust to protect assets.
Why do I need a power of attorney and enduring guardian?
Having a power of attorney and enduring guardian is the best way of ensuring decisions regarding your finances, housing, and healthcare, are carried out by someone you trust and chosen by you. Without these documents, these decisions may be taken out of your hands in the event you find yourself incapacitated.
What is the process of probate in NSW?
After the executor is identified, one of the first steps in probate in NSW starts with the executor publishing a public notice of their intent to administer an estate, which is done through the NSW Supreme Court website.
The process then involves gathering supporting documents, making an application for probate, responding to any requisitions from court, identifying the deceased’s assets and liabilities, and distributing the estate according to the deceased’s will. The court charges a fee for a grant of probate and the fee depends on the value of the estate in question.
How lawyers can assist with the administration of a deceased estate?
Lawyers can assist with all aspects of estate administration, including but not limited to the following:
- interpreting and construing the will, if the language of the will is ambiguous,
- publishing probate notices,
- preparing documents to apply for probate,
- contacting debtors and creditors of the estate,
- managing the estate assets (paying rates, outgoings etc) until they are distributed,
- distributing the estate,
- probate and distribution,
- administering and estate management,
- keeping beneficiaries updated,
- resolving disputes.
How does an enduring power of attorney differ from regular power of attorney?
An enduring power of attorney differs from a regular power of attorney as it continues to operate if the principal loses the ability to make decisions for themselves due to injury, or illness such as dementia or Alzheimer’s disease.
Whereas a regular power of attorney ends upon the principal losing the ability to make decisions for themselves.
Where a person wants to appoint someone to make decisions for them in the event they lose the ability to make decisions for themselves due to injury or illness, then an enduring power of attorney is appropriate.
What are the legal consequences of not having a proper estate plan?
When a person dies without a valid will, it is referred to as dying ‘intestate,’ and the subsequent division of their estate is subject to the rules of intestacy.
If a person dies intestate in NSW, who inherits the estate is set out in the Succession Act 2006 (NSW). This begins with spouses, then issue (children). In the absence of a spouse or children, other relatives may inherit, in the following order: the parents of the deceased, followed by any siblings (or where the siblings are survived by children – those children), grandparents, and uncles and aunts (or where the uncles and aunts are survived by children – those children).