Probate and Estate Administration
Expert assistance for Probate - your peace of mind during challenging times.
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How do I write my own will?Dormers does not recommend anyone writes their own will.
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Why should I have a will?If you don’t have a will, then you have no executor and therefore, no one is authorised to represent your estate once you die. An application for Letters of Administration can also cost thousands of dollars and there is complexity around the process. The other thing to remember is that someone you don’t even like or know could end up being your Administrator. If you leave a will, then you can say who manages your estate when you die.
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But I don’t have any assets, what’s the point in having a will?These days, everyone at least has superannuation so there is some risk that may fall within notional estate, in NSW at least. Most super policies also contain life insurance, which can be substantial. This can become part of your estate in some cases.
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What is testamentary capacity?In order for a will to be valid, the will-maker must have testamentary capacity. This means that the will-maker must: understand the nature of making a will and the effect of making a will understand, at least in general terms, the nature and extent of the property of which they are disposing be aware of those who might be thought to have a claim upon their testamentary bounty have the ability to evaluate and discriminate between the respective strengths of the claims of such persons
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Do I truly have testamentary freedom?You are free to set out your wishes and how you would like your assets to be distributed after death in a will. Such a freedom, however, is not absolute in Australia.
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What are mutual wills?Mutual wills can also be called mutual will contracts. Mutual wills form a legally binding contract between two people. It involves two wills being drafted in terms that both parties agree to, and it prohibits either party from revoking or amending their will unless the other party agrees. As a result, when one person dies, both wills can no longer be amended. See also: The Curious Case of the Mutual Will
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What is the difference between a “normal” will and mutual wills?Usually, normal wills are revocable. That means it can be cancelled and you can make a new one. However, mutual wills can only be revoked while both parties are still alive, have capacity, and when there is agreement between the parties. Therefore, mutual wills contain an express or implied agreement not to revoke the will after the death or incapacity of either party.
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What is an example of a mutual will?An example may be where a couple makes an agreement that when the surviving partner dies their property will go to a specified beneficiary. Another example may only deal with the will of one of the parties. For example, when a housekeeper agrees to work for free on the basis that their employer will leave the house and contents to them.
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When would I be involved in a mutual will?A common scenario is when you wish to gift your estate to your surviving spouse to ensure your wealth passes on to your children when your surviving spouse dies. A mutual will would ensure that when you die, your surviving spouse cannot amend or revoke the will. This means your children will become the “ultimate beneficiaries” of your estate. In another case, you may wish to gift your estate directly to your children without gifting anything to your surviving spouse. In such a case, a mutual will could prevent your surviving spouse from making a family provision claim against your estate.
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Are mutual wills confined to husbands and wives?No. Mutual wills can be made between any two people who wish to bind each other to an estate plan.
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What happens if one party breaches the mutual will?If your surviving spouse breaches the mutual will, you can reply on the mutual wills contract to obtain some type of compensation.
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Can you give me an example of how a mutual will would work?Imagine Clare and John are married. They each have a daughter from a previous marriage. They make wills to agree to leave their assets to each other. In such wills, they agree the estate of the surviving spouse would be equally divided between Clare’s daughter and John’s daughter. John dies a few years later and his estate passes to Clare. At the time of John’s death, Clare’s estate is held on a constructive trust. (Constructive trust is an arrangement where a person holds property as the owner for the benefit of at least one beneficiary). This means that Clare must deal with the assets in the estate in the way that was outlined in the mutual will.
Why choose us?
Our team has extensive experience in probate law and a deep understanding of the specific requirements and procedures in New South Wales. We stay updated with any changes in legislation. This allows us to provide comprehensive guidance and support to executors, administrators, beneficiaries and interested parties.
When you choose Dormer Stanhope, you can expect personalised attention, clear communication, and strategic legal representation tailored to your needs. We are committed to upholding the highest standards of compassion and professionalism, ensuring you feel supported and informed throughout the probate process.
With years of experience in Succession Law, our team possesses the knowledge and skills necessary to handle even the most complex cases.
If you need assistance with probate and estate administration, contact Dormer Stanhope Lawyers today.
What are the different types of Probate Applications?
The main types of probate applications are:
Grant of Probate
When there is a valid will, and an executor is appointed. A grant of Probate must be obtained before the executor can legally manage and distribute the estate in accordance with the provisions of the will.
Letters of Administration with the Will Annexed
When a person dies leaving a valid will, but no executor is appointed, or the executor is unwilling or unable to administer the estate. An alternative administrator is appointed by the court to manage and distribute the deceased's estate according to the terms of the will.
Letters of Administration
When there is no valid will (intestate) and an administrator is appointed by the court to manage and distribute the estate according to the rules of intestacy, ensuring that the estate is handled properly and fairly.
What is Probate?
Probate is the legal process where the Supreme Court of NSW validates a deceased person's will, allowing the executor to distribute the estate according to the will’s terms. Without probate, the executor may face difficulties in managing and distributing the estate.
Drafting the necessary documents and compiling details of the deceased’s assets and liabilities, lodging the will with the Supreme Court and applying for probate.
Step 1
Application
The Court reviews and validates the will; and the executor responds to any Court requisition.
Step 2
Validation
Upon approval, a grant of probate is issued, authorising the executor to administer the estate.
Step 3
Grant
The executor collects the deceased’s assets, pays any debts, and distributes the estate.
Step 4
Administration
Applying for probate involves lodging an application with the Supreme Court of NSW. The process typically includes:
How can we help?
At Dormer Stanhope, we recognise the importance of handling probate and estate administration matters efficiently and with the utmost sensitivity. By handling the legal processes involved in probate and estate administration, we aim to ease the burden on our clients, allowing them to focus on their families and personal well-being.
Free First Consultation
We provide a free initial consultation to fully understand your unique situation and to give you tailored advice and clear guidance on the probate process. We will explain your rights and responsibilities as an executor as well as the steps you need to take to obtain a grant of probate.
Document Preparation and Application Lodgment
We will prepare and handle all the required documentation and lodge the probate application with the Supreme Court. This includes drafting affidavits, identifying assets and liabilities and ensuring all paperwork complies with legal requirements.
Estate Administration
Once a grant of probate is obtained, we will assist with estate administration. This includes collecting and valuing assets, paying any obligations and taxes and distributing the estate to beneficiaries in accordance with the will.
Court Representation
If necessary, we will represent you in Court proceedings and fight for your rights.
At Dormer Stanhope, we understand that grieving the loss of a loved one is emotionally challenging. On top of that, navigating the legal processes associated with probate and estate administration can be intimidating and overwhelming.
Our experienced team of probate and estate administration lawyers in Sydney is dedicated to providing you with professional yet compassionate legal guidance through this trying time.