A “will” is a written declaration by a person which provides for disposition their property to take effect upon that person’s death.
A will is therefore probably the most important document because it is the only document a person will ever sign that gives away everything they ever own!
The person making the will makes provision for an executor to be appointed to administer their estate after death, to discharge liabilities and to distribute their property as directed to beneficiaries as specified in the will.
The Succession Act 2006 (NSW) deals with the distribution of property from a deceased’s estate.
The objective of the laws relating to a will is to assist the executor, ensure that the property of the deceased is distributed pursuant to the intentions of the deceased, to avoid the risk of fraud and mismanagement and provide avenues to beneficiaries or those persons deemed eligible to make a claim on the deceased’s estate.
Making A Claim Against A Will
It is a general view that a person has the freedom of allocating their estate to whomever they wish in their will, but the freedom of doing so is only partly true.
Under Chapter 3 of the Succession Act 2006 (NSW) an eligible person may apply to the Court for a family provision order in respect of a deceased person’s estate.
An eligible person, pursuant to section 57 of the Succession Act 2006 (NSW), includes the following persons:
- A person who was the wife or husband of the deceased person at the time of the deceased person’s death;
- A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
- A child of the deceased person;
- A former wife or husband of the deceased person;
- A person:
- Who was, at any particular time, wholly or partly dependent on the deceased person; and
- Who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of *Which the deceased person was a member;
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
An application for a family provision order must be made within 12 months of death, unless the Court otherwise orders on sufficient grounds being shown.
It is also important to note that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
Duties Of An Executor
The duties of an executor can be challenging depending on the complexity of the estate in question.
Despite its challenges, the common underlying duty of an executor is the same for all estates being administered, that is, the executor must execute his or her role diligently and in accordance with the law.
The responsibilities and duties of an executor include, but are not limited to the following:
- Protecting, collecting and gathering the real and personal assets of the deceased’s estate;
- paying all estate debts and discharging liabilities;
- notifying all interested parties including beneficiaries of the will;
- providing to the Supreme Court an inventory of the assets comprising of the estate;
- preparing and submitting the total costs involved in administration of the estate to the Supreme Court;
- applying for the required Grant of Probate or, if applicable, Letters of Administration from the Supreme Court;
- finalising income tax returns of the deceased estate; and
- taking necessary steps to distribute the estate pursuant to the deceased’s will.
In some cases the deceased’s estate can be administered without the need for a Grant of Probate depending on the size of the estate and the means by which the assets of the estate were owned by the deceased and other persons.
Responsibilities Of An Executor
The following are the responsibilities of an executor:
- Organising funeral and/or burial or cremation of the deceased;
- Locating the original will and confirming the same to the beneficiaries;
- Keeping the assets safe, such as securing properties and valuables, paying for insurances etc.;
- Lodging taxation returns on behalf of the deceased and his estate; and
- Selling property and distributing assets pursuant to the deceased’s will.
The executor is also responsible for managing trusts and making investments on behalf of beneficiaries below the age of 18 years.
Executor Seeking Assistance On Administering A Will
The responsibilities of the executor can be complicated and stressful depending on the size and nature of the deceased’s estate.
An executor can apply to the Court for its assistance, in cases of any issues arising in relation to administering a will. The Court will give appropriate directions thereby protecting the executor from any liability.
The cost of proceeding is usually ordered out of the estate of the deceased.
Defending A Will And Legal Charges
Defending a will in the event that a family provision claim is made can be complicated and stressful without appropriate legal advice.
In such circumstances it is advisable to seek advice from a lawyer, at a cost that is usually covered by the deceased’s estate.
Whether you are experiencing difficulty in administering a will or find yourself defending a will, Owen Hodge Lawyers will work hard to guide and assist you in exercising your duty as executor.