Category

Estate Planning

What Happens if You Die Without a Will in New South Wales?

By | Estate Planning

It’s estimated up to 50% of people in NSW either don’t have a will or don’t have a valid will, meaning that should they die unexpectedly, they will be considered intestate and their estates distributed to surviving family members under the rules of the Succession Act 2006 (NSW).

This is not ideal. Most people would like to know that whatever they leave behind after their death – property, shares, heirlooms and other assets – will be distributed to loved ones in accordance with their wishes rather than the provisions of a government act, but this is not possible if they didn’t get around to making a will.

This article provides a basic outline of how an estate is divided in the event of a loved one dying without a valid will.

Who can inherit a deceased’s estate without a will in place?

There is a hierarchy of next-of-kin who stand to inherit a deceased’s estate in the event of intestacy. It begins with a spouse and then, where there is no spouse, the deceased’s children and grandchildren, parents, siblings, grandparents, aunts and uncles, cousins and finally, the state (where a person dies with no living relatives).

Where a person dies with a spouse but no children, the spouse may be entitled to the whole estate of the deceased. If the deceased leaves both a spouse and children behind, and the children are the children of the spouse, it is the spouse who may be entitled to the whole estate. If the children are not the children of the spouse, the spouse may be entitled to: the personal effects of the deceased; a statutory amount, adjusted for CPI plus interest; and one half of any remainder.

In the event that the deceased had multiple spouses, various other considerations will come into play as to how the estate will be distributed and expert legal advice should be sought.

Under the NSW law, a spouse is defined as the person the deceased was married to immediately before their death, or was in a ‘domestic partnership’ with. This latter relationship can include de facto relationships or an interstate relationship that is registered. For de facto relationships, the relationship must have been for a continuous period of two years or resulted in the birth of a child.

It should be noted that if the deceased owned property with someone else as a joint tenant, then that person will inherit the entire property.

What is the process when there is no will?

For an intestate person’s assets to be distributed when they die without a will, someone needs to be appointed as an ‘estate administrator’, who will take on the responsibility of distributing the estate in line with the intestacy rules.

Often the administrator will be a lawyer, a financial planner or someone else trusted by the deceased (where possible), who needs to apply for a grant of administration from the court. This grant will allow them to reconcile matters related to the deceased’s estate – such as any unpaid debts, taxes, funeral expenses, etc – by withdrawing the deceased’s funds, before distributing what remains of the estate.

In simpler cases where the deceased left few assets and has a single spouse to inherit his or her estate, a grant of administration will not always be needed. The same applies if those likely to inherit from the estate can come to agreement on how best to distribute the assets.

Applying for a grant of administration can be time-consuming, involving a lot of paperwork and background research in order for the deceased’s estate to be properly distributed.

For this reason it is recommended to seek the guidance of legal professionals with a background in wills, estates and intestacy, such as the experts at Felicio Law Firm. Call us today on (02) 4365 4249.

Marriage Divorce Separation Existing Will

What is the Effect of Marriage, Separation or Divorce on an Existing Will?

By | Estate Planning

Once you’re of age and working, making a will – or what lawyers refer to as ‘estate planning‘ – is a highly recommended course of action to ensure your wishes are carried out in the event of your death.

But the terms of a will are necessarily complicated once you marry or, later on, separate or divorce. Various pieces of government legislation have further complicated the picture, meaning expert legal advice is strongly advised when it comes to making, amending or updating a will.

How does marriage impact the terms of a will?

If you have a will and then decide to get married, that will is revoked once you exchange vows. The exception to this is if you make a will in the “contemplation of marriage”. That is, you decided to make a will to cover the circumstance of gaining a beneficiary (or beneficiaries) in the form of your new spouse.

A law change made on March 1, 2008, will also provide an exception to the ‘revocation-on-marriage’ will provision. If you got married on or after that date, any terms in your will which provide a benefit to your spouse, or any appointment of them as an executor or trustee of the will, or as a guardian (of children, for example) remains in place, though the will is otherwise revoked.

If you die and didn’t manage to update a will that was made before March 1, 2008, then you may be partially intestate depending on the terms of the will at the time you married. In this case, your spouse will likely be able to claim most if not all of your estate and a state’s intestacy laws will determine who is entitled to anything not left to your spouse in the will.

How does separation affect a will?

On its own, separating from your spouse has no effect on your will but as noted above, your now ex-spouse will have the largest claim on your estate should you die before you divorce. For this reason, legal experts in estate planning recommend you always update or amend your will if your separation from your spouse looks like it is permanent.

What happens if we then divorce?

Various changes to relevant legislation over the years affect the impact of divorce on your will. If you were divorced in NSW before November 1, 1989, the will you had in place at the time of that divorce is unaffected and your ex-spouse is entitled to any gift in your will, unless you specifically revoked or updated the document.

If you were divorced after the above date, any terms in the will in favour of your ex-spouse, or any appointment of them as an executor or trustee in your will, are revoked. The further law changes in 2008, however, mean that if you were divorced on or after March 1, 2008, and your ex-spouse appears in your will as a trustee for beneficiaries such as any children from the relationship, then your ex may still act as trustee despite the divorce.

Same-sex couples

The passing of legislation enacting marriage equality in Australia in December 2017 has complicated the legal picture around same-sex couples and their wills.

Many couples married overseas prior to the Australian law changing, subsequently making their unions legal in Australia. Expert legal advice should be sought to determine the validity of wills made by couples who were legally married overseas prior to the recognition of marriage equality in Australia and made a will after this time, particularly if it includes beneficiaries other than their spouse.

As this article demonstrates, the legal landscape when it comes to the impact of marriage, separation and divorce on estate planning can be complicated. It involves different pieces of legislation with different dates before or after which certain aspects of a will are valid or not. In this case, contacting a law firm with proven experience in estate planning matters such as Felicia Law Firm is a wise course of action. Contact us today on (02) 4365 4249.

Litigation Guardians

Litigation Guardians – When Is It Appropriate?

By | Estate Planning, Litigation

One of the most common misconceptions about hiring a lawyer is that he or she will be solely responsible for making all of the decisions about your case both before and during any litigation.

It is true that your lawyer is legally and ethically obligated to provide the best possible legal advice and act in your best interest but provided you are making sound decisions based on the information he or she provides, your lawyer must also follow your instructions.

But what happens if you aren’t capable of telling your lawyer what to do? If you’re incapable of doing so because you’re under 18 years of age or disabled, the court will appoint someone called a litigation guardian to act on your behalf. In other words, this is someone who will effectively ‘step into your shoes’ to assess your best interests and instruct your lawyer accordingly.

To be selected as a litigation guardian, someone must:

  • be an adult;
  • demonstrate that he or she does not have any interest in the case that is opposed or potentially harmful to the interest of the person in need of his or her services;
  • be able to act fairly and competently;
  • consent to being a litigation guardian under applicable laws.

In some cases, relatives or other concerned parties will ask a lawyer to act as a litigation guardian. This is because a knowledgeable, experienced lawyer can act with a certain degree of objectivity and professionalism.

More often than not, the litigation guardian is a relative, friend or caregiver.  Barring that,  the court may select someone who does not personally know the person requiring a litigation guardian. In either case, the person chosen to fill this role must become familiar with the person’s situation and issue instructions that reflect their charge’s best interests.

Litigation guardians are generally appointed in the following types of cases:

  • Personal injury;
  • a criminal compensation application;
  • various matters related to Wills;
  • family provision applications.

A litigation guardian must be selected to represent someone in any Federal Circuit Court matter in which that party is incapable of understanding the proceeding or its potential consequences; or is incapable of fulfilling his or her legal obligations. Applicable court rules dictate that a minor must have a litigation guardian unless the court orders otherwise.

In accordance with Family Law Rules, a litigation guardian in the Family Court is known as a ‘case guardian’. In any Family Court matter a person who is legally classified as a child or is otherwise incapable of instructing his or her attorney, and/or fulfilling his or her legal obligations, must have a case guardian in order to initiate, continue, respond to, or intervene in proceedings. The only exception to this rule is if the court finds that the child not only comprehends the nature and possible consequences of the case, but can also make certain decisions and meet his or her legal obligations.

There are several methods for appointment. Someone can simply apply to be appointed a litigation guardian or case  guardian. In certain circumstances, the court may ask the Attorney-General to nominate a litigation guardian or case guardian. The court may also make its own motion for appointment of a litigation guardian. It may also remove or replace a litigation guardian.

Once the appointment is finalised, the litigation or case guardian must advise all other relevant parties about it in writing.

A newly-selected litigation guardian or case guardian must also abide by applicable court rules. Furthermore, he or she must do everything ordinarily required of a party to the litigation. Finally, he or she may also do anything that the party to the litigation would ordinarily do for his or her own benefit.

As we have already noted, a litigation guardian must obtain proper legal advice. In this context, he or she must duly consider any proposals for resolution of the case, such as participation in alternative dispute resolution.

In accordance with a relevant court order, any costs incurred by the litigation guardian are paid by a party to the litigation or from the income or property of the person that he or she represents.

To learn more about how to be appointed as a litigation guardian or any related issues, contact our Central Coast lawyers today.