Estates, Probate and Contesting a Will

Estates

There are usually three stages involved in finalising a deceased’s legal and financial affairs (called an “Estate”).

The first is obtaining the grant of representation (where the deceased left a valid Will, this is usually Probate).

The second is administering the estate.

The third is distributing the estate.

Probate

In certain circumstances, an executor will need to apply for Probate. A Grant of Probate means that the Supreme Court has formally approved the Will of the deceased. This formal approval allows the executor to collect the deceased’s assets, arrange payment of all of the deceased’s debts and then distribute the estate pursuant to the wishes set out in the deceased’s Will.

Probate is necessary if property is held in the sole name of the deceased or where a financial institution requires Probate before they will release the deceased’s assets.

Letters of Administration (intestacy)

A grant of Letters of Administration is a legal document issued by the Supreme Court, which allows the administrator(s) to manage and distribute the deceased's assets. There are two distinct types of applications for Letters of Administration:

Letters of Administration – where the deceased died without leaving a will (i.e. died intestate)
Letters of Administration with the Will annexed – where the administrator of the estate proves a valid Will (i.e. where there is a Will but the Will is lacking an essential component, such as a valid appointment of an executor).

Specialist Grants

Copy of or reconstructed Will (i.e. where the original Will is proved to be missing or destroyed)
Letters of Administration ad colligenda bona (which means “collecting and preserving deceased's goods”. This type of grant is usually only used in emergency situations to appoint an Administrator to deal with property that is subject to waste or danger)
Letters of Administration de bonis non (which means “of goods not administered”. This type of grant is usually only used when the sole Administrator cannot be located or dies during estate administration or in circumstances where an Executor dies breaking the chain of representation)
Grant durante minore aetate (A type of grant used in circumstances where the Executor named in the Will is a minor)
Letters of administration durante absentia (Used when the Executor is out of the State for more than 1 year from the date of death)
Letters of Administration pendente lite (Used to enable the due administration of the estate during court proceedings)
Letters of Administration ad litem (Used when the estate is required to be represented in court proceedings)
Letters of Administration durante dementia (Usually used if the Executor cannot act due to mental incapacity)
Probate or Letters of Administration cum testamento annexo (Usually used for proof in solemn form i.e. where the deceased has left a will but has not appointed an executor or where the executor named is incompetent to act, is deceased, or refuses to act)

Recognising Foreign Grants in New South Wales

Interstate Reseals

Contesting a Will - Family Provision Claims

A family provision claim is an application to the Supreme Court for a share, or a larger share, from the estate of a deceased person.

Plaintiff

If you do not feel that sufficient provision has been made for you in your loved ones’ Will, then you must file a family provision claim in the Supreme Court within 12 months of the date of death. You can make a family provision claim if you:

are an 'eligible person',
have been left out of a will,
did not receive what you thought you were entitled to receive.

Defendant

If you are the executor of an estate and a claim for provision or further provision is made against that estate, it is your obligation to uphold the terms of the Will and protect the interests of the beneficiaries. This may mean that you proceed to Court, or it may mean that a settlement is negotiated. It is important to obtain specialist legal advice as to your responsibilities during such proceedings. Rayners Lawyers can provide you with such advice.

Administration Litigation

Sometimes, the administration of an estate may lead to litigation such as where the executor proving the Will is believed to be proving the wrong Will or that the person proving the Will is not entitled to be the executor. Contested Probate and Administration proceedings are complex and it is important that you receive tailored, specialist advice during such proceedings. Rayners Lawyers can provide you with such advice.

For further information, please contact Kirsty Rayner directly on 0422 33 88 10 or by email [email protected]

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