Will and Estate Administration

This topic includes four main areas of expertise

  • Preparing your will
  • Administering an estate
  • Contesting a will
  • Family Provision Claims by disappointed family members

Why do a will?

When you die your loved ones will be emotionally distraught. It will be hard enough for them to cope with their normal daily activities as well as arranging your funeral and dealing with other bereaved family members.

Don’t make it harder, by leaving your financial affairs in a mess. The last thing your surviving spouse or family members need is uncertainty, and fights about financial Matters.

Even a simple will can smooth the process. It will identify who is to look after your affairs, and what they are to do with your property. The existence of a properly signed will allows the named executor to get the process started even before probate is granted. This helps for essential matters such as organising the funeral, and accessing your account to pay for the funeral, and paying your other bills and periodical expenses.

This will relieve stress and worries at this difficult time, and allow legal and financial issues to be pushed back (as they should be) until the grieving process, and personal issues are dealt with.

A properly signed will also saves substantial costs in estate administration. If there is no will, costly Supreme Court proceedings become essential to sort through difficult issues, such as who should be appointed to administer the estate. Further the funds must be distributed to spouses and children in accordance with a strict legal formula (the intestacy rules), which cannot take account of the complex family relationships, and claims which exist in your family.

Of course preparing a will is not always simple. It involves identifying your assets, noting property owned as joint tenant, considering involvement of family companies and trusts, and considering superannuation funds, and insurance policies, Finally we must consider what effect your death might have on all of these.

For many clients we recommend more complex wills incorporating testamentary trust, life estates, provisions for grandchildren. For some we must deal with children from prior relationships, and the myriad of other factors and relationships that make up family arrangements.

Please call P M Lee and Co. on 3435 4200 for a short free telephone consultation. It will save you time money & convenience.

Contesting a Will

Where a valid will has been made, it is unlikely that it will be overturned.

Most of the problems involving contested wills depend upon whether the document which purports to be the last will and testament of the deceased is in fact valid. Essentially the will can be attacked on the following bases:

  1. It was not the last will and testament of the deceased
  2. It does not constitute a valid will as the requisite formalities have not been followed
  3. The deceased lacked the necessary mental capacity to make a will
  4. It was altered after it was signed
  5. It was procured by undue influence or fraud
  6. It was revoked

These are all complex legal issues. PM Lee and Co lawyers, have the training and experience to guide you through them. It is impossible to properly deal with such matters without proper legal advice.

Estate Disputes

Family Provision Claims!

Apart from the matters referred to above a will may be attacked under the Succession Act Act Qld to remedy a situation where dependents believe they have not been adequately provided for.

Eligible persons may apply for a share (or a greater share of an estate). However they must establish need and prove that the testator did not make adequate provision for them in the estate for their maintenance, advancement or education in life. Basically the eligible person is normally concerned with questions of the reasonableness of provision. Eligible persons are:

  • The deceased’s spouse at the date of death
  • Someone with whom the deceased was living in a domestic relationship
  • A child of the deceased person
  • A former spouse of the deceased person
  • A dependent of the deceased, which may include persons related or unrelated to the deceased, including foster children and persons in a same-sex relationship

Where an order of the court is being sought to change a will, the court will address whether:

  1. The eligible person has been left without adequate provision for their proper maintenance, education and advancement in life; and
  2. If yes, what provision if any should have been made out of the estate to assist that person?

Technically all claims by an eligible person under the Succession Act should be made within 18 months of the date of death of the deceased person. Exception is only available with leave of the court in very limited circumstances. Realistically all claims should be made well within time to overcome the possibility of the estate having been distributed otherwise the costs to deal with this will be substantial.

Costs

Normally solicitors bill their clients as the matter progresses. With some wills/inheritance disputes we are prepared to wait until the end of the matter before submitting our bill. In these cases our costs are usually paid out of the estate on settlement.

Whether you be executor/executrix or a disappointed beneficiary and are concerned about a claim(s) made against an estate which you are administering or you have been overlooked by the deceased who has not made any or adequate provision for you please call PM LEE and Co to discuss.

Please call Peter Lee or Graham Knight on +61 7 3329 3999 or email peter@plee.com.au if you have any enquiries.

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