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Published On: Fri, Nov 17th, 2017

Probate Lawyers: What to Know About Probate and How to seek advice

The most simple way to define probate is that it is authority. Authority of the executor to deal with a deceased persons estate.

If a person dies and has property in NSW, the executor must obtain a grant of probate. The Grant of Probate is made by the supreme court of NSW. Once a grant fo probate is made, the executor is authorised to sell assets and property which belongs to the estate. The executor also has the authority and is responsible to pay the debts and liabilities of the deceased person such as a mortgage, credit card debts, loans and all other liabilities the deceased had as at the date of his or her death.

Photo/Nodar Kherkheulidze via wikimedia commons

The trustee of the superannuation fund has the discretion to make a decision to decide as to who to distribute the superannuation account and entitlements to. It is often the case that the estate is distributed to the legal personal representative which is the executor of the estate otherwise the spouse or children of the deceased.

It is recommended that you contact the super fund and arrange to nominate a beneficiary of your superannuation and entitlement to save the lengthy process of waiting for the trustee to determine as to how the superannuation and entitlements are to be paid.

You may do this by contacting the super fund. You may wish to consult a lawyer to also discuss this matter.

Superannuation is dealt with separately. You should speak with a probate lawyer and seek advice.  We recommend that you speak with a probate lawyer.

 

  • Contesting a Will/ Family Provision Claims

 

If you have been left out of a will you should contact a probate lawyer to see if you are entitled to provision.

You should obtain legal advice as to whether you are entitled to provision from a deceased persons estate.

A deceased person’s will can be challenged in certain circumstances. Several examples are listed below:

  1. The deceased person’s will is unfair
  2. The claimant has financial need
  3. The deceased person did not provide for the claimant’s further advancement and support and maintenance
  4. There are dependants of the deceased (fully or partially dependent)
  5. The deceased person was not of sound mind when the will was made (for example mental incapacity such as dementia).

In order for the court to determine whether or not to grant provisions to a person claiming against a deceased estate, the court will take into account a number of factors which are set out in legislation and case law. A probate lawyer will be able to assist you and proide advice as to the prospects of success of a claim against an estate.

For example, see below:

  1. The relationship between the claimant and the deceased such as whether the claimant is a family member or any other type of relationship
  2. Whether any obligations or responsibilities were owed by the deceased to the claimant
  3. The extent of the deceased’s estate
  4. Financial resources of the claimant for example the claimant’s ability to earn an income and financial need
  5. Whether the claimant has any mental, physical or intellectual disability
  6. The age of the claimant
  7. Whether the claimant has made any financial contribution towards the deceased’s estate such as contribution towards the acquisition, conservation or improvement of the deceased’ estate OR any contribution towards the deceased’s welfare
  8. Conduct of the claimant or any other person during the deceased person’s life or after the deceased passed away.
  9. Any other matter the court deems necessary to consider.

We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.  

Author: Colin Steinway

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