In the event of the death of a person, their property including real estates and financials is distributed among the beneficiaries keeping in mind the testamentary intention of the deceased person. The Law of Succession in Australia deals with the distribution of property from a deceased’s estate.

The Supreme Court of each State and Territory has the jurisdiction to deal with all matters concerning succession.

The primary objective of laws pertaining to Wills and Estate is to ensure that the deceased property is distributed according to the intention and wish of the deceased person to avoid the risk of fraud and to minimise mismanagement.

The Sydney-based estate lawyers at Owen Hodge Lawyers are here to help you begin dealing with a deceased estate.

Distribution of a Deceased Estate

The distribution of the deceased’s property is supervised by both legislative and common law authorities and the intention of the deceased is valued the most while distributing his/her property. In situations, where a person dies without making a Will or the Will is void, the property is distributed according to long established law known as family provisions.

The deceased’s property is first distributed amongst the closest family members (spouse, children). In situations, where the deceased has no immediate family members, then the deceased estate is distributed equally among the relatives who are in the extended family of the deceased (cousins, uncles). In extreme situations where the deceased has no family member, the Government distributes the deceased estate in whole to the Crown.

Administration of the Deceased Estate

The personal representatives are assigned the responsibility to deal with the administration of the deceased estate. In many instances, the executors of the Will have been nominated in the Will of the deceased. The Supreme Court can also appoint an administrator to deal with the deceased estate in situations where there is no valid Will or the person nominated to be the executor is unable to discharge his duties.

The beneficiaries have no right or interest in the deceased property until the executor distributes and disposes the assets and debts of the deceased. The beneficiaries only have a right to sue the executor if he fails to administer the estate diligently and correctly.

The executor may be asked to prove that he is authorised to administer the Will before the assets can be released and this can be proved with the Grant of Probate. To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Office of the Supreme Court and if the application is approved, it proves the authentication of the Will and that the executor is the person authorised to administer the deceased’s property.

In situations, where an administrator is appointed, he needs to obtain a Letters of Administration before the estate of the deceased is distributed.

Making a Claim Against a Will

A person can transfer his estate to whoever he wishes to, through his Will but the freedom of disposition of an estate is partly true.

In limited cases, Family provision legislation seeks to rectify injustices which can be caused by some Wills. The amended Succession Act 2006 (NSW) (“the Act”) significantly extended the categories of people who can make a claim against a Will in 2009. However, the claim should be made soon after the death and before the assets in the deceased estate are distributed to the various beneficiaries in accordance with the Will.

The 2009 amendments reduced the period of bringing a family provision claim to 12 months from 18 months from the date of death.

Under the previous legislation, there were four categorised “eligible person” who could make a family provision claim. The 2009 Act has increased this to six categories, which are enumerated below:

  • Surviving husband or wife of the deceased person;
  • A person who was living in a de-facto relationship with the deceased person;
  • A child of a deceased person, including an adopted child;
  • A former divorced husband or wife of the deceased;
  • A person who was: holly or partly dependent on the deceased person; or a member of the household of the deceased person,
  • A person who was living in a close personal relationship with the deceased person.

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