FAQs – Probate and Estate Administration in Adelaide

 

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What is probate?

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, his/her estate is represented by an executor or administrator. If the deceased person has made aWill 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.

If a person dies without making a Will the distribution of his or her estate is governed by legislation. Usually a next of kin (mother, father, brother, sister) applies to the Court to be appointed as the estate’s administrator. Upon being appointed, the administrator then distributes the assets of the estate in accordance with a formula set-out in the State legislation.

If you require advice and assistance in matters regarding any Probate and Estate Administration in Adelaide, please contact us for more information.

What is a Testator?

Testator is the legal term for someone who has created a Will.

What is an Executor?

When you make a Will you appoint an executor. Their role is to deal with your estate after your death. You can appoint more than one Executor, and a beneficiary can also be an executor.

What is a Trustee?

A Trustee is a person or company who is appointed to care-for and control assets on behalf of someone else. For example, in your Will you might leave a gift to your infant child who is too young to handle it yet. You can (and should) appoint a Trustee to handle that gift on behalf of your child, under your child reaches an age of sufficient maturity to be able to receive that gift outright.

What is a Beneficiary?

Beneficiary is the legal term for someone who receives a benefit under a legal or financial document. Typically it refers to a family member or friend who has been left a gift under the Will of someone else. The term Beneficiary can also apply to other non-Will gifts, such as under a Trust, superannuation or insurance policy.

Why instruct Genders & Partners to assist me?

Trust, Reliability, Security, & Peace-of-Mind

Perhaps you are named as executor of the Will of someone who has recently died. Don’t worry – you don’t have to do it all yourself. You can instruct us to take care of things on behalf of the estate.

By instructing us to administer a deceased estate, you gain the confidence and assurance that it will be administered by a professional and experienced organisation that has already streamlined the necessary administration procedures. Some of the advantages of instructing us are as follows:

  • Experience – Genders & Partners has over 160 years’ experience in the administration of estates and trusts. As the oldest law firm in South Australia, we are very experienced in Probate and Estate Administration in Adelaide.

  • Efficiency – We specialise in Will-making and estate administration. Our staff are thoroughly experienced in processing Wills.

  • Independence – As independent professionals, we have no personal beneficial interest in the estates administered.

  • Accessibility – our staff are available to discuss estate matters and to provide information.

  • Sympathetic administration – many Trustee companies are criticised as being impersonal, bureaucratic and unfeeling. We pride ourselves on our personal service.

  • Confidentiality – All information received by us is confidential.

Challenges to Wills

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

  • executed when the testator lacked capacity to understand what he/she was doing

  • tampered-with or altered after it was signed

  • the meaning of the Will is unclear

  • a later Will has been made by the Deceased

  • incorrectly executed or otherwise invalid due to a failure to follow the correct formalities

  • since been revoked

  • procured via fraud

Challenges to Estates

The main type of challenge to a deceased estate is where a disappointed beneficiary claims that insufficient provision has been made for him/her in the Will. Each State & Territory in Australia has local Family Provision legislation to permit certain categories of people to potentially claim for greater provision out of a deceased estate (such as spouse, children or others that the testator had an obligation to provide-for).

What is a Testamentary Trust?

A Testamentary Trust is a way for a gift to be held by someone (a trustee) on behalf of another person (the beneficiary). The terms of the trust are set out in the Will, and only come into existence upon the death of the Testator.

What happens if a later Will has been made?

A Will generally contains a clause that revokes all prior Wills made by the Testator. For this reason, a more recent Will would supersede the previous Will.

What is meant by mental incapacity to make a Will?

A deceased person may have lacked sufficient mental capacity to understand the nature & effect of their actions when they signed their Will. In some circumstances the law presumes that a person lacks capacity, such as if they are too young (that is, a minor) or subject to a Court Protection or Guardianship Order. A proven lack of Testamentary Capacity can result in the Will being declared invalid.

What is meant by undue influence?

If the Testator is “pressured” into creating or signing a legal or financial document (such as a Will), the document can be declared invalid.

This type of “pressure” is generally disguised as “helping Gran express what she really wants”, but is actually a form of Elder Abuse.

In certain circumstances, the law may presume undue influence to have taken place – such as when a beneficiary is present when the Testator gives instructions about or executes his/her Will. The legal concept of Undue Influence refers to an inequality of power between people, and if proven or presumed, can result in the invalidity of a Will.

What happens to a Power of Attorney after the death of its creator?

The donor of a Power-of-Attorney is the person who creates it. A Donee is the person who accepts the responsibility of acting as the agent of the donor. When the Donor dies, ALL powers-of-attorney immediately die too. They have no ongoing force or validity.

What are the consequences of not writing a valid Will?

When a person dies without a valid Will they are said to die ‘intestate’. Without a Will the decision as to who will benefit from your estate is beyond your control, and will instead be interpreted by the Court in accordance with the provisions of State legislation. Many categories of people whom you might otherwise wish to benefit from your estate will be automatically excluded by the State-based formula. For example, friends and charities can never benefit from an intestate estate.

It is also important to realise that the laws of intestacy vary from time to time and from place to place. So it will depend on when & where you die as to which statutory formula may apply to your estate – it could even end up going to the Government in certain circumstances.

A poorly-drafted Will is easily challenged by those who feel they have a claim.

What if there is no Will?

In every State & Territory in Australia, local legislation sets out a formula (rules of intestacy) for how your estate will be distributed and to whom. In some circumstances, the result of dying without a will can be disastrous for your family or loved ones. Having a solicitor prepare your will ensures your assets will be distributed according to your wishes.

What is meant by ‘intestate’?

When a person dies without a valid Will they are said to die ‘intestate’. Without a Will the decision as to who will benefit from your estate is beyond your control, instead being interpreted in accordance with the provisions of the State legislation.

Why are DIY and kit Wills so dangerous?

There are many formalities to follow in writing a valid Will. The slightest mistake with these formalities could result in an invalid Will or a successful Will challenge later on.

Any mistakes you make with those kits (which are really just expensive stationery!) can end up costing your family later on (disputed estates, family distress, huge litigation costs).

All Will kits contain a disclaimer saying it is not a substitute for proper legal advice! So will it be worth anything to you when it really counts? The problems will only show up after you’re dead and gone. Then it’s your family & loved ones who have to wear the cost and all the delay and heartache to try to fix it all afterwards.

What about a free Will from a Trustee Company?

Some people might be tempted by estate companies who offer to prepare a Will for you for free. However, this service comes with a big catch. You only get the free service upon condition that they are named as the Executor of that Will for subsequent administration upon your death (which gives them substantial fees, which is why the preparation of the Will is given away for nothing).

Trustee companies charge a percentage of the estate as a commission to administer it, and thus charge thousands more than a specialist lawyer would, to perform the same work for an average estate. This is how trustee companies make their money and why they are able to afford to give away free Wills. So any “saving” you make now could really drain your estate later – it’s not really a saving at all.

For an average estate, most trustee companies in Australia charge roughly THREE times more than what Genders & Partners would charge to prepare both an integrated estate plan AND administer the estate following the testator’s death – an additional expense of approximately $10,000 to your estate & family.

No wonder estate companies are happy to give you a “free Will” upfront … the hidden costs really hit home later on.

What does altering a Will after it is signed do?

A signed Will is ONLY valid in the condition in which it was signed. Alterations to the Will can only be made by way of a formal Codicil to the original Will. Some people attempt to make alterations to the Will after it has been signed – not only can these alterations not be included as part of the document, but they may have the effect of revoking or effectively destroying the original Will, so that the Testator ends up dying intestate.

What are the benefits of using Testamentary Trusts?

These types of trusts are setup inside the Will. There may be a number of benefits in using Testamentary Trusts, especially the ability to organise more complex arrangements. They are commonly used in the case of minor children – to control the distribution of your assets by giving legal ownership of the assets to a Trustee at first instance, while the benefit of the asset goes to the beneficiary. This arrangement can protect your money from creditors of the beneficiary, from third parties such as gold-diggers or from the beneficiaries themselves (alcohol/ drug/ gambling problems, etc).

What are the duties of an Executor?

the general duties of an executor include:-

  • burying or cremating the body;

  • ascertaining the assets and liabilities of the deceased;

  • obtain a grant of Probate where such a grant is required to bring in assets or there is notice of a prospective claim under the provisions of relevant Inheritance legislation;

  • collect and get in all assets and to take proceedings to recover same, if necessary;

  • realise (redeem) sufficient assets to pay the funeral and testamentary expenses of the deceased;

  • manage any property during administration of the estate;

  • attend to payment of all liabilities and debts, including those incurred in the administration of the estate (if assets are insufficient to meet liabilities, the estate must be administered in bankruptcy);

  • prepare accounts in respect of the administration of the estate;

  • pay all legacies and hand over assets specifically outlined and in accordance with the terms of the deceased’s Will;

  • transfer the residue of the estate to the residuary beneficiaries.

What are the rights of an Executor?

Executors can only make very limited claims for the duties they perform. They are entitled to reasonable expenses incurred in administering the deceased estate, and they may also make claims for executor’s commission. Executor’s commission is not an automatic right, but it is possible if the Will provides for it or if all the beneficiaries have agreed to it, or the Executor makes application to the Court for such allowance. Other than these circumstances, executors are not entitled to any benefit under the Will.

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