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 News & Updates site.
Guides in this publication
MATTER PLAN
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“ Commentaries ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily regulated ... ”
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“ Disclosure requirements vary between the states and territories and are embodied in each costs agreement. Law practices are required to make written disclosure of a wide range of matters relating to the costs of legal services before or as soon as practicable after the law practice is retained. ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ Termination When a retainer is terminated before completion a lawyer may claim costs for the work done to the date of termination on a quantum meruit basis if: ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the cost assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ Other states For more information on similar procedures that exist in some other states, see: ”
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“ y trusts? For clients with substantial assets, complicated families or family members who have medical or personal problems, the use of testamentary trusts has multiple benefits over usual wills, summarised below. ”
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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 and Articles – Wills and Estates ”
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“ Probate Rules 2017 Probate Rules 2017 commenced on 8 November 2017. ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ Where the lawyer is to act for multiple parties – that is, a number of executors – it should always be pointed out that the lawyer cannot act or continue to act where there is a (material) conflict of interest between them. If relations between the clients are cordial – not always the case! – it is ... ”
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“ ? Where there is no real property involved, there is no statutory requirement to obtain a grant. Most banks, financial institutions and share registries will not insist on a grant before releasing or transferring cash or securities if the amount concerned is relatively small; however, each ... ”
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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 deceased’s accounts before a grant is obtained. ”
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“ An executor is a person, either an individual or a trustee organisation, appointed by the will to administer a deceased’s estate. If an executor survives the testator but dies without having taken out probate of the will, or is cited to take out probate but does not appear to the citation, or ... ”
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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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“ Who is a beneficiary? A beneficiary is a person or entity to whom a bequest is made in a will. However, for the named person to be a beneficiary, both the will and the bequest must be valid. It is incumbent upon an executor to establish the validity of the will and then to administer the estate ... ”
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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 78 to ... ”
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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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“ It is important to consider if the cause of death gives rise to any compensation or damages, for example, death resulting from 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 A notice of intention to apply for a grant of probate must be published on the Supreme Court’s website at least 14 days prior to lodging an application for a grant. See rules 33 and 61 Probate Rules 2017 and Notice of Intention to Apply for a Grant or Reseal of a Grant. ”
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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. The amount of commission is usually no more than 1-2% of the estate. It is discretionary and an executor seeking commission should be aware that the court may not award any ... ”
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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. Care needs to be taken at the outset to question the client to enable fees to be accurately estimated, as a number of matters ... ”
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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, a distribution statement should be prepared as a record for both executors and beneficiaries, ... ”
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