1. Wills & Estate Planning
A Will is one of those documents that’s easy to put off.
Maybe you’re young and healthy. Maybe your assets don’t seem complicated. Maybe you’re assuming everything will simply pass to your spouse, partner or children.
But life doesn’t always follow the plan we have in our heads.
A Will lets you record how you want your estate dealt with after your death, and nominate the executor responsible for carrying that out. If someone dies without a valid Will, they die “intestate”, which means NSW succession law decides how their estate is distributed, rather than the person themselves.
We work with you to prepare a Will that actually reflects your circumstances. Depending on your situation, that might mean thinking through:
- who you want to appoint as your executor
- who should benefit from your estate
- how particular assets or gifts should be handled
- what happens if a beneficiary dies before you
- provisions for children or other dependants
- how your family and relationship circumstances affect the plan
- whether anything increases the risk of a future dispute
Our role isn’t to fill in a template. We want to understand what you’re actually trying to achieve, flag issues you might not have thought about, and prepare documents that reflect your instructions properly.
When Should You Review Your Will?
Making a Will shouldn’t be a once-in-a-lifetime exercise.
Life can look very different five or ten years on. A marriage, separation, divorce, new relationship, birth of a child, death in the family, or a major change in your finances can all be good reasons to revisit your plan.
Even if nothing dramatic has happened, it’s worth checking in on your Will from time to time and asking a simple question: does this still reflect what I want?
If the answer is no, or you’re not sure, talk to us before making handwritten changes or trying to alter the signed document yourself.
Why Use a Lawyer to Prepare Your Will?
Will kits and online templates are everywhere. For very simple situations they might seem convenient, but the hard part of estate planning is rarely typing names into a document. It’s working out what the document actually needs to say, whether it achieves what you intend, and whether anything’s been missed.
Questions around execution, capacity, beneficiaries, executors, family relationships and who owns what can become very important once the Will-maker isn’t around to explain what they meant. Getting advice now can make things much clearer for whoever eventually has to administer your estate.
2. Estate Administration
When someone close to you passes away, legal paperwork is probably the last thing on your mind. But if you’ve been appointed executor, there’s usually still a fair bit that needs attention.
An executor is generally responsible for identifying and collecting the estate’s assets, dealing with liabilities, and distributing the estate in line with the Will and the law. The Supreme Court of NSW describes this as collecting assets, paying debts and distributing what’s left to beneficiaries.
Depending on the estate, administration can involve:
- locating and reviewing the original Will
- identifying estate assets and liabilities
- communicating with banks, financial institutions and other organisations
- working out whether probate is required
- preparing a probate application where needed
- dealing with property forming part of the estate
- paying estate liabilities
- communicating with beneficiaries
- handling questions or disputes involving beneficiaries
- considering whether a claim has been or might be made against the estate
- distributing the estate when it’s appropriate to do so
Every estate is different. Some are fairly straightforward. Others involve property, investments, several beneficiaries, unusual Will provisions, missing information or family disagreements. We help you understand which of these steps actually apply to your situation, rather than walking you through everything that might not be relevant.
I’ve Been Named Executor. What Do I Do First?
Don’t panic, and don’t feel like everything has to happen immediately.
Start by getting hold of the Will and finding out what the estate contains, and whether a court grant is likely to be needed. There can also be good reasons not to distribute an estate too soon, particularly if a dispute or claim is on the cards.
We help you work through the estate in order, so you know what’s done, what’s still outstanding, and what your responsibilities are as executor.
3. Powers of Attorney
Estate planning isn’t only about what happens after death. It’s also worth thinking about what would happen if, while you’re alive, you needed someone else to manage financial or legal matters for you.
A Power of Attorney is a legal document that lets you appoint another person to manage financial and legal decisions on your behalf. An Enduring Power of Attorney can keep operating even if you later lose decision-making capacity.
Choosing an attorney matters, because that person could end up with real responsibility for your affairs. Worth thinking through:
- whether you trust the person completely
- whether they can handle financial matters
- whether to appoint one person or more than one
- when you want the authority to start
- what authority you want to give
- whether any conditions or limitations make sense
We’ll explain what a Power of Attorney actually means before you sign it, and help make sure the document reflects what you intend.
Is a Power of Attorney the Same as an Enduring Guardian?
No.
In NSW, a Power of Attorney deals with financial and legal matters. An enduring guardian is appointed to make certain health and lifestyle decisions if you’re no longer able to make them yourself.
This matters because people sometimes assume appointing someone under one document gives them authority over everything. It doesn’t.
Getting the right advice helps you understand what each document actually does, and what planning makes sense for your circumstances.
4. Probate & Letters of Administration
Probate is one of those legal terms most people only hear for the first time after someone close to them has died.
In simple terms, a grant of probate is a legal document from the Supreme Court of NSW that authorises the executor named in a Will to manage the deceased person’s estate according to that Will.
Whether probate is needed depends on the assets and circumstances of the estate. Where it’s required, the executor usually has to go through the Supreme Court process before certain assets can be transferred or distributed. We can help with preparing and progressing a probate application, and dealing with anything that comes up along the way.
What Are Letters of Administration?
Letters of Administration are different from probate.
If someone dies without a valid Will, an appropriate person may need to apply to the Supreme Court of NSW for a grant of Letters of Administration before they can administer the estate.
There’s also a form called Letters of Administration with the Will annexed, which can apply where a Will exists but there’s no executor available to obtain probate, for example because no executor was appointed, or the appointed executor can’t or won’t act. We can look at your situation and explain which type of application might be needed.
How We Can Help
Quill Legal can assist with:
- reviewing the Will
- working out whether probate or Letters of Administration is required
- preparing the relevant application
- guiding executors or administrators through the process
- addressing issues with the Will or executor appointment
- assisting with administration after a grant is obtained
- explaining the process clearly, start to finish
Probate can feel complicated when you first come across it. Our job is to make it manageable.
5. Contested Estates
Disputes involving Wills and estates are particularly hard because they rarely involve strangers. They often involve brothers and sisters, spouses, former partners, children, stepfamilies, or other people who’ve shared years of history.
The disagreement might be about money or property, but there’s usually a lot more going on underneath.
You might believe you’ve been unfairly left out of an estate. You might have concerns about how a Will was made. Or you could be an executor or beneficiary facing a claim you think should be defended. We help you understand the legal issue behind the disagreement, and the options for dealing with it.
Challenging or Contesting a Will
People often use “challenge” and “contest” interchangeably, but estate disputes can arise in different ways.
One type involves questions about whether a Will is legally valid, for example concerns about the Will-maker’s capacity, or whether the document truly reflected their intentions.
Another is a family provision claim, where an eligible person argues that adequate provision hasn’t been made for their proper maintenance, education or advancement in life. In NSW, this generally needs to be started within 12 months from the date of death, although the Court can deal with late applications in the right circumstances.
That’s why getting advice early matters.
Can an Estate Dispute Be Resolved Without a Final Court Hearing?
Sometimes, yes.
An estate dispute doesn’t automatically mean years of courtroom battles. Depending on the circumstances, there may be room for negotiation or mediation before it reaches a final hearing. Legal Aid NSW notes that family provision matters can be resolved through mediation, and that court proceedings in those matters are referred to mediation.
A negotiated outcome can save everyone considerable time, cost and stress. But settling shouldn’t mean accepting an outcome just to make the matter go away. We’ll help you understand the strengths and risks of your position, so whatever you decide is an informed decision.
