Wills, Probate & Asset Protection

Affinity Lawyers

Affinity Lawyers | Wills, Probate & Asset Protection

Our Gold Coast Wills, Probate and Asset Protection Lawyers are dedicated, sensitive to the circumstances and have significant experience available to assist our clients with their estate planning and asset protection needs, as well as drafting wills and testamentary trusts.

As you would appreciate, a will or testamentary trust needs to be as comprehensive and thoroughly reflective of your instructions in order to minimise adverse claims which may be made against your estate. Further, the drafting of a will or testamentary trust must be done in a very precise manner to ensure that there are no errors, or any other issues which may affect the validity of your will.

If you have a concise, up to date will in place upon your passing it will also assist with having your estate administered efficiently and quickly, which will be beneficial for your executors, and in turn and minimise the cost to the estate, meaning more is left for your chosen beneficiaries.

We have written some previous articles on the importance of estate planning, wills and probate, so please take the time to have a read through these at your leisure, we will be regularly updating these links to other articles, so please bookmark this page and check back often:

https://www.affinitylawyers.com.au/blog-view/nominal-assets-do-you-still-need-a-will-137

https://www.affinitylawyers.com.au/blog-view/estate-planning-wealth-protection-important-138

https://www.affinitylawyers.com.au/blog-view/making-a-last-will-and-testament-what-do-you-need-171

https://www.affinitylawyers.com.au/blog-view/testamentary-trust-wills-128

https://www.affinitylawyers.com.au/blog-view/gold-coast-probate-and-estates-133

https://www.affinitylawyers.com.au/blog-view/new-year-time-for-a-will-health-check-144

Affinity Lawyers experienced and professional Wills, Probate and Asset Protection lawyers provide a range of services in this area, including but not limited to:

  • Wills
  • Probate
  • Testamentary Trusts
  • Superannuation advice
  • Enduring Power of Attorney
  • Advanced health directives
  • Estate plans
  • Administration and estate disputes and litigation;
  • construction and interpretation of the Succession Act and Will drafting.

We have provided some brief circumstances below which may indicate that it is time to review your estate structure and will:

Marriage

Whether you are marrying for the first, second or third time, marriage generally invalidates your Will unless your Will clearly indicates that it is made in contemplation of that marriage. If your Will was not made in contemplation of marriage, you and your spouse should make new Wills as soon as possible after you are married to ensure that your will accurately reflects your circumstances, wishes and beneficiaries.

Children 

Regardless of whether you have biological children, adopted children, step-children, or even if you have grandchildren, these can all effect how your estate is distributed after your passing.

Sometimes, there may be circumstances where you wish to exclude a child or step-child from your will.

All of these circumstances require professional legal advice when drafting your will to ensure that it is tailored to your specific circumstances, and to ensure your wishes are able to be carried out (as best they can be in accordance with the law).

We have previously written some important articles about this, links below if you would like to read further:

https://www.affinitylawyers.com.au/blog-view/another-year-another-opportunity-to-get-organised-230

https://www.affinitylawyers.com.au/blog-view/superannuation-estate-planning-what-you-need-to-183

https://www.affinitylawyers.com.au/blog-view/estate-matters-family-provision-claims-154

It is strongly recommended that you seek legal advice regarding your obligations to your children after your death, especially children under the age of 18 years old.

Separation

If you have separated from your former partner or spouse, you should make a new Will as soon as possible. Unlike divorce, separation does not automatically invalidate the provisions of your Will that relate to your former partner/spouse. This means that, in the absence of a new Will, your former partner/spouse may be entitled to benefit under your estate even if you do not wish this to occur.

https://www.affinitylawyers.com.au/blog-view/changing-your-will-and-poa-after-separation-239

Divorce

Upon divorce, any provision in your Will that relates to your former spouse becomes invalid.

Superannuation

You should also ensure that after separation or divorce, you contact your superannuation fund to make or change your binding death benefit nomination.

https://www.affinitylawyers.com.au/blog-view/superannuation-estate-planning-what-you-need-to-183

Probate

Generally, before a deceased person’s final wishes are able to be performed, a procedure known as a Grant of Probate of a Will is required. This is a sealed document that is issued by the Supreme Court Registry which affirms that the executor has proven that the Will is the last valid Will/Codicil of the deceased. Once Probate is granted, the executor/trustee is entitled to deal and discharge their duties in respect of the assets of the estate and distribution to the beneficiaries.

In some situations a Grant of Probate is not required (e.g. if a residential property is held in joint names, the property will automatically transfer to the surviving joint owner/ or if there is an inter vivos trust).  It is important to enquire with the body that you are seeking to obtain the estate funds from, whether they require a Grant of Probate.

With an ageing population on the Gold Coast, and increasing legislative requirements governing financial and other commercial institutions, Probate is often now required to be obtained by executors prior to releasing funds held on the deceased’s behalf. Thresholds that govern whether Probate needs to be obtained, vary at each institution, but can be as low as $15,000. Another example of when Probate might be necessary is where there is a dispute regarding the provisions of the Will.

Once Probate is granted, the executor is able to deal with the assets and distribute to the beneficiaries nominated under the Will. However, there are times when this can be a complex and challenging task, particularly with the onerous duties imported on executors, and where large amounts of money and assets are involved.

Obtaining a Grant of Probate can in some instances give a personal representative added protection pursuant to s54(4) of the Succession Act 1981, which states:

A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant notwithstanding any subsequent revocation thereof.”

Each situation varies, so we highly recommend obtaining advice from one of our local Gold Coast Solicitors.

Family Provision Applications

Perhaps you’ve been left out of a Will, or you think that the Will of the deceased is unfair. In Queensland, the Succession Act 1981 (Qld) (‘The Act’), confers rights to specifically defined dependants, (see below) to bring a Family Provision Application.

What is a Family Provision Application?

A Family Provision Application is an application to the court, for an order that the applicant have a share, or greater share in the deceased’s estate.

Who can make a Family Provision Application?

Pursuant to the Act, the application can only be brought by someone who was the spouse (including de facto partner or former husband/wife), child (including step-child or adopted child) or dependant person (for example the parent of the deceased or a person under the age of 18), of the deceased.

However, despite the above, the court has the power to reject the applicant’s claim if there is evidence that the applicant’s relationship with the deceased, or their prior conduct disentitles the applicant from receiving proceeds from the estate.

What is the basis of the application?

To be successful in the application, the applicant must prove that the deceased did not make an ‘adequate provision for the proper maintenance and support’ of the applicant.  

The court will take the following factors into account, when determining if and in what portion of the estate, the applicant should receive: 

  • The applicant’s financial position;
  • The size and nature of the deceased’s estate;
  • The totality of the relationship between the applicant and the deceased;
  • The relationship between the deceased and other persons who might have a claim against the estate; and
  • The age, capacities, and financial positions of other potential beneficiaries.

What are the time limits on Family Provision Application?

In Queensland, a person must give notice that they intend to make a Family Provision Application within six (6) months from the date of death of the deceased. Furthermore, the Family Provision Application must commence within nine (9) months after the death of the deceased person.

How do I make an application?

Making a Family Provision Application can be a sensitive and complex matter.  Affinity Lawyers on the Gold Coast can guide you through the process of the application and offer a free initial consultation.

Further reading

Some articles we have written on this topic are provided below for your convenience:

https://www.affinitylawyers.com.au/blog-view/timely-reminder-to-update-your-will-after-your-189

https://www.affinitylawyers.com.au/blog-view/family-provision-applications-130

https://www.affinitylawyers.com.au/blog-view/estate-matters-family-provision-claims-154

https://www.affinitylawyers.com.au/blog-view/family-provision-claims-209

https://www.affinitylawyers.com.au/blog-view/superannuation-estate-planning-what-you-need-to-183

https://www.affinitylawyers.com.au/blog-view/your-cheap-will-kit-may-end-up-causing-an-213

https://www.affinitylawyers.com.au/blog-view/do-you-own-assets-in-multiple-jurisdictions-if-so-175

https://www.affinitylawyers.com.au/blog-view/potential-problem-with-mirror-wills-123

If you require further information on any of the above and our range of services, please contact us on (07) 5563 8970 or email us on admin@affinitylawyers.com.au.

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