Wills, Probate and Estates, the law, process and words surrounding what happens to your assets and liabilities when you die can be confusing.
In simple terms, you have the ability to make a valid Will which is a written document signed by you and witnessed by two other people that sets out the way you want your assets and liabilities to be dealt with on your death. Your assets and liabilities make up what is known as your “Estate” and you will often hear the term “the Estate of the deceased.”
In New South Wales the ability to leave your Estate to whoever you choose is called ‘testamentary freedom’. Testamentary freedom is not absolute – the Succession Act of New South Wales allows eligible people to make a claim against your Estate if they feel that you have not adequately provided for them. Eligible people include your children, spouse, de facto partner or other people who were dependent on you. This is why it is important to obtain expert legal advice on your Will to limit any claims being made on your Estate by an eligible person.
Another common term used is “intestacy” or the phrase “to die intestate.” Intestacy refers to a person who dies without a valid Will. If a person dies without a valid Will then their Estate will be dealt with and distributed in accordance with the Intestacy Rules.
The word Probate refers to the formal application that is made to the Supreme Court of New South Wales to have your Will proven as valid. If the Court agrees that your Will is valid then they will Grant Probate over the Will which means that your Executor named in the Will has the right to distribute your Estate in accordance with your Will.
Why do we need Wills, Probate and Estates?
The requirement for Wills, Probate and Estates was introduced in New South Wales a long time ago in 1898 under the Probate and Administration Act. The purpose of the Act was to regulate this area of the law to ensure that it was dealt with in accordance with the social norms of the day. The Act has been updated over time to ensure that it continues to reflect the times. One of the latest updates was to insert a definition of a de facto relationship.
The legal governance of Wills and Estates is important to ensure that the wishes of a deceased person are carried out after their death. It includes avenues to challenge Wills as invalid if the deceased did not have the mental capacity to make a Will or if it is believed that they were unduly influenced when making their Will. It also sets out the process that needs to be taken in order for a Grant of Probate to issue and an Estate to be distributed.
If you need legal advice on your Estate, speak to one of our expert law team at The Sydney Probate Lawyers. Specialising in all areas of Probate Law, we pride ourselves on our open and honest communication with clients.
Phone for an appointment with Graeme Heckenberg on (02) 9221 2779. Sydney Offices conveniently located, near public transport in Macquarie Street, Sydney CBD.