Year: 2018

Probate is official recognition of a deceased persons will.  It is granted by the Supreme Court to the executor(s) named in the will and gives them full authority to deal with the deceased persons assets and to distribute their estate in accordance with the terms of the will.

If there is no will, Letters of Administration can be granted to one or more of the people entitled to the deceased persons estate.  A Grant of Administration works the same way as a Grant of Probate and gives the person to whom the Grant is made, known as the Administrator, legal authority to deal with the deceased’s assets.

Letters of Administration can also be granted to a person entitled to a deceased estate if the deceased leaves a will with no named executor or if the executor named in the will has died before the testator.  This type of Grant is called Letters of Administration cum testamento annexo (with the will annexed).

Administrators or Executors of a deceased estate can be referred to as ‘Legal Personal Representatives’ and it is their responsibility to gather in the assets of the deceased, pay any outstanding debts and then distribute the remaining estate in accordance with the terms of the will or the intestacy provisions in the Succession Act 2006.  Legal Personal Representatives are subject to a number of obligations and must make a sworn commitment to administer an estate in accordance with the law when applying for a Grant.

Not all deceased estates will need a Grant of Probate or Administration, however some asset holders will only release assets if a Grant has been made.  For example, the title to land cannot be transferred without a Grant of Probate or Administration.

If you need advice about a deceased estate or assistance with applying for a Grant of Probate or Letters of Administration, contact Althea at Hornsby Wills and Probate on 0410 485 277 or by email: althea@hornsbywillsandprobate.com.au

How often a will needs updating depends on the circumstances of its author, who is known as the testator or testatrix.  Once it is signed a will remains valid until it is revoked however over time an individual’s family structure and financial circumstances will change.  This means that a will drafted a long time ago, even though it is still valid, may not accurately reflect the testator or testatrix’s current wishes.

Generally, you should review your will every 5-10 years to make sure you are happy with it.  It is also a good approach to review your will upon the happening of major life events including:

1.  Getting married or divorced.
2.  Commencing or ending a de facto relationship.
3.  The arrival of children or grandchildren.
4.  Any significant change to your financial circumstances.

If you would like some advice about your will, please contact Althea at Hornsby Wills and Probate.  Ph: 0410 485 277.  Email: althea@hornsbywillsandprobate.com.au

Do couples in a de facto relationship have the same entitlements as a married couple if one spouse dies without a will?  In theory they do however, in practice, a de facto spouse will have to jump through some additional hoops to realize their entitlements.

Under the intestacy provisions in the Succession Act 2006 (NSW), a de facto spouse has the same entitlements to inherit as a married spouse however, the spouse’s status must be proved to the Court.  A married spouse in this situation can simply produce their marriage certificate but, unless the relationship is registered, a surviving de facto spouse will usually have to rely on affidavit evidence to prove the status of their relationship.  This means that they will have to disclose detailed and personal information to the Court and even then, it will be up to the Court to decide whether a de facto relationship exists.  This situation can make it easier for someone to challenge the status of a de facto spouse, whereas it’s difficult to dispute the existence of a legal marriage.

It is possible in NSW to register a relationship with the Registry of Births Deaths and Marriages.  Partners in a registered relationship can be issued with a certificate which can be used prove their relationship status.

Properly drawn wills can also protect de facto spouses, whether their relationship is registered or not, avoiding the need for the survivor to prove the validity of their relationship at what is already a difficult and distressing time.

If you would like advice about your particular circumstances, please contact Althea at Hornsby Wills and Probate. Phone: 0410 485 277. Email:  althea@hornsbywillsandprobate.com.au

More information about registering relationships is available at:

http://www.bdm.nsw.gov.au/Pages/marriages/relationship-register.aspx