Wills, Estates and Intestacy

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The law relating to wills and estates is dealt with in State legislation. In New South Wales, this includes the Wills Probate and Administration Act, the Family Provision Act and the Trustee Act.

Preparing a will is a fundamental means of determining how your estate is to be dealt with upon passing away. It is an important matter for most people, particularly those with children, in order to make provision for those who may have been dependent upon them or may have been close to them. It is often a matter people attend to upon the breakdown of a relationship.

In the absence of a will, the law of intestacy applies to determine how your estate is to be distributed. This may result in your estate being distributed in a manner other than according to your wishes or intentions.

If you intend to prepare a will, you will need to give some careful thought to whom you bequeath your estate, including making provision for your estate or part of it to pass to another person in the event that one or more of your intended beneficiaries does not survive you.

In addition, you will need to consider who to appoint as executor and trustee of your estate. It is better to appoint more than one person, for instance in the event one does not survive you. It is also a good idea to ask the person(s) you propose to nominate as your executor(s) and trustee(s) if they are willing to undertake this role.

You may appoint a solicitor to act as your executor and trustee. Alternatively, the persons you appoint as executor and trustee may decide to appoint a solicitor to attend to matters of probate, and distribution of the estate.

Family Provision Act

In some cases, a person for whom no provision has been made in a will may be entitled to make a claim against a person’s estate under the Family Provision Act.

This legislation provides a mechanism for some categories of people to make such a claim where they can establish a need or dependency upon the deceased, or they have made significant contributions to the deceased and the justice of the case requires it.

Power of Attorney

Some people are concerned to ensure that their financial and other affairs be taken care of in the event of their absence from home (for such reasons as extended overseas travel), or if they lose the capacity to deal with such matters. In these situations, a common solution is to execute a Power of Attorney appointing a person their attorney.

The Power of Attorney can limit the types of matters or transactions the attorney can deal with on a person’s behalf, and laws are in place dealing with the attorney’s duties and obligations.

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