Articles | Genders and Partners

Rogue Executors

When executors goes bad, and what to do about it…

Several times each month, my phone will ring, and someone will tell me about a family member who is doing the wrong thing in the administration of a deceased estate.

It’s often a sibling. For some reason, some brothers and sisters can have a rivalry that borders on all-out warfare. There have been times when I’ve had sibling-executors in my office who couldn’t agree on the colour of an orange! (The expression ‘cats and dogs’ comes to mind).

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Strange but true – recent wills and estates news

Here’s a quick roundup of some interesting news items from the world of Wills and estates.

Hoist on his own petard? Father who denied paternity is excluded from dead child’s estate

A UK Court has decided that the substantial estate of a mentally disabled child who died without a Will should be distributed to his mother and his foster family.

The court excluded the child’s biological father from inheriting a share because he had denied paternity and played no part in the child’s life.

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Any old Will won’t do

Forget about religion or politics. If you want to start an argument on Facebook, try talking about the possibility of someone’s Will potentially being contested.

Boy, does that get people riled-up!

I’m always trying to educate people about Wills and estates, and the topic that most divides opinion relates to what is called ‘testamentary freedom’.

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Essential Guide To Super Death Benefits

Most people in Australia badly misunderstand what happens to their superannuation after they die.

The biggest mistake people make in this area, is thinking that they can give their super to whomever they wish outside of their Will.

In fact, federal Australian legislation places substantial restrictions on who can receive your super after you’re gone.

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What is Probate and is it always required in South Australia?

Probate is the process of a Court establishing that a Will is valid and represents the final testamentary intentions of the Testator. There are time limits for a Will to be submitted to the Probate Court after the date of the death of the Testator.

When someone dies, their estate is represented by an executor or administrator. If the deceased person has made a Will it is the named executor(s) who will be charged with the responsibility of implementing the terms of the Will and administering the estate.

Usually, subject to the value of an estate, an executor(s) is required to obtain what is called a “Grant of Probate” from the Supreme Court of South Australia. The Grant of Probate is a process whereby a deceased’s Will is validated as being his or her last Will. Upon a Grant of Probate being made, an executor then has the responsibility of implementing the terms of the Will by distributing the assets of the estate to the nominated beneficiaries after payment of liabilities and expenses.

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12 Dangerous Stresses of Administering a Deceased Estate in SA

Sometimes the Executor of a Deceased Estate gets pressure from family and other beneficiaries to do questionable things in the administration of the Estate.

Here are a few of the higher-risk demands frequently directed at nervous Executors by pushy relatives:

1. Obtain a Grant Of Probate As Quickly As Possible

Sometimes relatives and other potential beneficiaries might push an Executor to go faster than they should. Almost always, those beneficiaries will have their own interests at heart, without necessarily considering your rights, duties and responsibilities as Executor, nor the other interests attaching to a Deceased Estate. A prudent Executor might do well to remember the adage: Good. Fast. Cheap. Pick 2.

In South Australia, generally Probate cannot be applied for until at least 28 days after death. In certain circumstances an urgent application can be made faster than this, however special reasons need to be proven.

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Challenges to a Will or Estate in South Australia

“You never know anybody until you’ve shared an inheritance with them”

Challenges to Wills are far less common than challenges to estates. A Will can be contested or challenged when it is alleged that :

The Will was executed under undue influence from others;

The Will was executed when the testator lacked capacity to understand what he/she was doing. This is increasingly common due to the rise of dementia in our ageing population;

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The Poor Man’s Will Dangers of Joint Ownership in Estate Planning

Joint accounts with other people are a common method for ageing persons seeking help with money management, but this can cause problems.

What is Joint Tenancy

Joint Tenancy is used often by couples as a means of owning shared assets. There are some good reasons to do this, but there are also some drawbacks.

Joint accounts are often referred to as a “poor man’s Will” because they allow an individual to give assets to another upon death without going through the probate process. Some people have the perception from hearing horror stories that probate will consume the entire estate.

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Why You Need a Will and What it Does

Your ‘Will’ is a legal document that tells the world what you want to happen to your estate after you’re gone.

Your ‘estate’ is everything you own or control. It can include real estate, bank accounts, investments, shares, insurances, superannuation, vehicles, personal possessions and all manner of other assets.

It can also include intangible assets like goodwill, royalties, intellectual property and various legal rights.

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World Alzheimer’s Month

Next week marks the beginning of World Alzheimer’s Month and Dementia Awareness Month. Without a medical breakthrough, the number of people with dementia in Australia is expected to increase to 536,164 by 2025 and to 1,100,890 by 2056.

World Alzheimer’s Day is on 21 September. Here at Genders and Partners, we will be honouring our clients and their caregivers who are battling Alzheimer’s and Dementia by posting on social media in order to spread awareness and start conversations about how to make life easier for those battling through these devastating diseases.

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