Estates
This comprehensive and practical guide assists practitioners to advise and act for clients in all types of estate matters.
An application for probate or letters of administration can be made with ease and confidence. The guide features detailed commentary and all necessary forms and precedents for obtaining a grant, getting in assets and making the distribution. Deeds of release and indemnity and deeds of family arrangement are included.
Recent updates to this publication can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ Contents Overview3 ”
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“ This information is included for research and educational purposes only. The interpretation of these cases is that of the author, and the lawyer should read the complete judgment to ascertain whether a particular case may be relevant to the issue before the lawyer. It needs to be appreciated that ... ”
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“ y trusts? For clients with substantial assets, or complicated families, or family members who have medical or personal problems, the use of testamentary trusts have multiple benefits over usual wills summarised below. ”
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“ A number of recent cases have highlighted the need for care where executor’s commission is sought by a ‘professional’ executor such as a legal practitioner, in particular where the will makes no specific provision for the payment of commission. A useful starting point for a discussion of a claim ... ”
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“ Lawyers face difficulties as regards charging costs and/or commission when acting as a lawyer to, and executor of, a deceased estate. Traditionally lawyers practising in all but large city firms would dabble in property law and wills & estates. ”
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“ Most property lawyers will also be involved in the administration of deceased estates and, on occasions, may in fact act as the executor of a deceased estate. This is entirely appropriate, as there will always be clients who do not have a close friend or relative who they can appoint to fulfil ... ”
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“ Every case of course turns on its own facts, but two recent cases, and an ageing population, highlight the need for consideration of a number of issues when agreeing to take on a new wills matter. Fischer v Howe [2013] NSWSC 462 1 ”
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“ Death can impact on a conveyancing transaction in a number of ways, whether the death occurs prior to commencement or during the course of the transaction. Survivorship ”
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“ Article by Rosslyn F. Curnow Nolch, Principal, Rosslyn Nolch Solicitors, 2017. Amendments to the Powers of Attorney Act 2014 (Vic) will be made by the Powers of Attorney Amendment Act 2016 (Vic) which has now received royal assent. The latest default implementation date is 1 May 2017. One of the ... ”
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“ This article first appeared in The Legal Executive September-October 2014 issue. It is a brief summary of planned changes to succession laws in Victoria, which have triggered media comment such as the Herald Sun article, Experts fear planned changes to estate laws will encourage ‘gold diggers’. ... ”
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“ The purpose of this article is to outline the general scope and requirements of the various Powers of Attorney which may be made pursuant to the Powers of Attorney Act 2014. It by no means includes all of the matters covered by the Act. ”
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“ In the preceding article Succession laws in Victoria - Forthcoming changes we reported on the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, and noted that at the time of preparing the article it was uncertain whether the Bill would be passed, or passed in its then current ... ”
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“ Note: This outline represents the interpretation of the author, is provided for educational purposes only, and does not constitute legal advice. For a more detailed understanding, the reader must analyse the reports for him/herself. There have been two recent inquiries into matters relating to ... ”
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“ An owner has died. What should I do about the property title? - Land Titles Office FAQ Circular No 14 of 2017 Probate Practice and Procedure - Supreme Court of Tasmania ”
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“ Wills, Powers of Attorney & Enduring Guardianships (TAS) Papers, Articles and Case Law – Wills and Estates ”
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“ The types of grant that may be sought include: A grant of probate. Where the deceased has a will appointing an executor who is willing and able to apply for probate. ”
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“ Cause of death It is important to consider if the cause of death gives rise to any compensation or damages, for example, death as a result of a motor vehicle or work accident. See the Motor Accidents Insurance Board and Workers Rehabilitation and Compensation Tribunal for more information. ”
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“ Of note: ”
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“ There is no statutory requirement to obtain a grant. Most banks, financial institutions and share registries will not insist on a grant if the amount concerned is relatively small; however, each institution differs, and information should be sought at the outset as to whether or not the institution ... ”
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“ Funeral expenses In order to pay a person’s funeral expenses most banks will allow funds to be withdrawn from the estate before a grant is obtained. ”
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“ If an executor survives the testator but dies without having taken out probate of the will, is cited to take out probate but does not appear to the citation or renounces probate of the will their rights as executor cease. Representation of the testator and administration of their estate proceeds as ... ”
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“ If an executor appointed by a will does not wish to proceed in the role, they must sign a renunciation, which is then filed with a subsequent application for grant for probate or letters of administration. Where there are no remaining executors named in the will the appropriate person applies for ... ”
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“ Attesting witness Section 12 Wills Act 2008 discusses the circumstances in which a gift can be made to an attesting witness. In relation to the draftsperson, see Professional executors below. ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ A caveat will of course never be filed without proper consideration and due cause, such as where there are grave doubts as to the validity of a will. However there may be instances where there are valid grounds for an objection to a grant being made in respect to a will or an intestacy. Rules 77-82 ... ”
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“ Any ‘unusual’ matter - for instance, name discrepancies in the will, assets held in another name and so on - should be addressed at the outset. Any issues of competency, including affecting medical conditions noted in the death certificate, should also be addressed at the outset. Depending upon the ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ It is important to consider if the cause of death gives rise to any compensation or damages, for example, death as a result of a motor vehicle or work accident. See the Motor Accidents Insurance Board and Workers Rehabilitation and Compensation Tribunal for more information. Remains ”
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“ Advertising There is no requirement to advertise the intention to apply for a grant of probate. ”
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“ A ‘reseal’ means to seal with the seal of the court of a second jurisdiction documents that evidence the grant of probate made in another jurisdiction. A reseal is necessary as the personal representative appointed by a grant in a foreign jurisdiction cannot deal with assets in Tasmania, although ... ”
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“ An executor or trustee may apply to the court for a commission or percentage out of the assets of the deceased person, 'for their pains and trouble therein as shall be just and reasonable', not exceeding five per cent of the estate's assets, although in practice a full five per cent overall will ... ”
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“ In practice the award of commission is usually agreed between the personal representative and the interested beneficiaries. As the commission payable to the personal representative for the administration of the deceased estate is a testamentary expense, the interested beneficiaries are those ... ”
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“ The steps for making an application for commission are outlined above. The entire procedure can take some considerable period of time depending on court requirements. The costs associated with any application should always be considered before filing. To avoid the costs associated with a formal ... ”
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“ Depending upon the nature of the estate and the sophistication of the legal personal representatives, some executors may wish to deal with administration themselves, setting up an interest bearing estate account to consolidate funds before distribution, and so on. This will also be the case where ... ”
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“ A duty concession is available where property is received by the beneficiary of a will or inheritance. To claim the duty concession you must supply: ”
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“ Application to be Registered Proprietor by Survivorship Complete and lodge an Application to be Registered Proprietor by Survivorship to change the names of the registered proprietor on a property title, where the property is registered as joint tenants. The registration of this form is dependent ... ”
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“ The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 came into force on 1 July 2016 and were amended on 1 July 2017. Essentially, when a property with a market value of $750,000 or more is transferred, the transferee is required to withhold ... ”
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“ Prior to preparing a deed of family arrangement, some research must be carried out to ensure a client is advised of all the potential consequences, including the implications and requirements of any applicable taxation or duty issues, and the effect on any duty exemptions which might otherwise ... ”
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“ As a general rule all of the property of the deceased is available to pay the debts of the estate including funeral costs, other testamentary expenses and any other debts which have been incurred. The executor must not unnecessarily diminish the estate by paying claims they are not bound to pay and ... ”
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“ Solicitor fees will vary according to the firm, the size of the estate, and according to the service being sought. There is no scale of legal fees for estate administration. ”
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“ Executors and administrators alike should be aware of rule 607 Order for accounts Supreme Court Rules 2000 and the necessity to maintain complete and accurate administration records. In order to maintain complete and accurate account the executor should: ”
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“ The executor should consider whether any actions are still on foot, in respect to which Stanford v Stanford [2012] HCA 52 is noted. Any orders or binding agreements made pursuant to the Family Law Act 1975 (spouses or de facto partners) or the Relationships Act 2003 (significant or caring ... ”
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“ Depending on the circumstances of the estate it may be appropriate to make an interim distribution to the beneficiaries of part of their entitlement. Keeping in mind s 55 Power of personal representative to distribute assets Administration and Probate Act 1935 the executor should only do so if ... ”
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“ The included sample letters are basic in design, and will need to be adapted to suit the particular situation. Even where a formal administration account is not necessary in the circumstances of the matter, it is suggested that preparation of a distribution statement will be of benefit to executors ... ”
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