Wills & Estates Newsletter – June 2019
Recently or about to be married? Have you updated your Will?
A recent estate matter Carroll & O’Dea were involved in demonstrates the importance to consider whether to include a ‘contemplation of marriage clause’ in your will if you are in a de facto relationship. Under this clause, the testator’s intention that the Will is drafted prior to marriage and will continue to be valid and have effect after the marriage takes place, is made clear.
Contesting a Will in the Family Provision Context
It is a generally accepted principle of law that an individual is entitled to leave their property by Will to whomever they wish when they die. However, there are unique circumstances where the Court may alter the terms of the Will.
If you believe that the deceased in his or her Will has not made appropriate provisions for you, you may be entitled to contest its terms by lodging an application with the Court for an order for provision to be made out of the deceased’s estate to you (known as the family provision application). Contesting a Will is often a confronting process, and there are a number of factors which you should consider when deciding whether or not to contest a Will.
Who can receive your superfund death benefits on your death?
Your superannuation can be a major asset of your estate, so it is important that you direct how you wish your superannuation to be paid following your death.
The payment of your superfund death benefits is governed by the terms of the trust deed which is managed by a Trustee of the relevant superfund.
Depending on the terms of the trust deed, you may be able to nominate a beneficiary or beneficiaries of your superfund death benefits in one of the following ways:
Wills & Estates FAQs
1. What is a grant of probate or administration?
A grant issued by the Supreme Court of NSW is a legal document that authorises the executor or administrator (who becomes the legal personal representative of the deceased person) to manage the estate of a deceased person in accordance with the provisions of the deceased’s will or the intestacy rules set out in the Succession Act 2006 (NSW).
The most common forms of grants are the following:
- A grant of probate means a grant issued to the executor of the last will.
- A grant of administration means a grant issued to the administrator in the circumstances where the deceased died without a will (intestate) or if there is a will, no executor is available to act.
2. Do I need to get a grant?
It may not be necessary to obtain a grant from the Supreme Court of NSW as it will depend on the type, size and value of the assets held in NSW. For example, some banks may be agreeable to release small assets to the executor or next of kin without the need to produce a grant. Another example is if you own a family home as joint tenants with another person, then that property automatically vests to the surviving joint tenant on the death of a joint tenant and it will be a matter of registering death of a joint tenant at Land Registry NSW without the need to produce a grant.
Adelaide Ryan, Associate