Wills - Estates - Probate - Letters of Administration
Delta Legal Perth Inheritance Lawyers provide quality service and sound legal advice in relation to inheritance.
A Will is a legal document that contains directions regarding division and distribution of assets after the death of the Will maker (“Testator”). A Will can be drafted by a private legal practitioner or a Public trustee. The Testator may choose an Executor who will be responsible for the execution of the document. The Executor is responsible for obtaining a grant of Probate (which confirms the Executors authority under the Will), gathering together the property of the deceased, clearing all debts and finally distributing the remainder of the estate in accordance with the terms of the Will. In case a person dies intestate, the decision regarding the division and distribution of such person’s asset will be under the Administration Act 1903.
We have experienced inheritance lawyers that can provide legal advice regarding complex wills. If you are in need of complex will or need an opinion on existing will please call us to arrange an appointment.
Very Affordable Simple Will
We recognise that not everyone needs a complex will. In fact, majority of people need a simple will.
A simple will means you leave everything to your spouse but if your spouse dies all goes to the children in equal shares.
An estate plan is a compilation of various documents like-
(b) Superannuation death nominations
(c) Testamentary trusts
(d) Powers of attorney
(e) Power of guardianship
(f) Anticipatory direction
The Estate plan makes provision for the care and of the testator, medically and financially, if he is unable to take his own decisions in the future due to some incapacity and or inability. A person must be of 18 years of age and of sound mind when he is intending to prepare an estate plan.
Probate is the process of proving and registering in the Supreme Court the last Will of a deceased person. When a person dies, somebody has to deal with their estate. It is usually the executor of their Will who administers the estate and handles the disposal of their assets and debts.
In order to get the authority to do this, they usually need to obtain a legal document called a 'Grant of Probate'.
To protect the interests of those who hold the deceased's assets (for example banks) the executor may be asked to prove that they are authorised to administer the Will before the assets can be released.
The Grant of Probate is the proof required to obtain a Grant of Probate. The executor named in the Will must apply to the Probate Office of the Supreme Court. If their application is approved, the executor is given a Grant of Probate to confirm that the author of the Will has died and the Will is authentic. An executor can be an individual or a trustee company like the Public Trustee. Once a Grant of Probate has been given, management of the deceased's assets can safely be transferred to the executor.
Letters of Administration
When a person dies without a will then a person entitled may apply to the Supreme Court for Letters of Administration. The effect of obtaining the Letters of Administration is that the person that has obtained the Letters of Administration must distribute the estate according to the law.
A Testamentary Trust is a trust contained in a Will. Major advantages of the Testamentary Trusts include taxation benefits like relief from paying the Capital Gains Tax (CGT) and the Income Tax. Death is not an event covered under CGT. Therefore the transfer of an asset to the beneficiary will not attract CGT. Income earned on the assets of a Testamentary Trust (such as rent from that Property) can be distributed to any beneficiaries named in the Will. Children under 18 are treated as adults for tax purposes under a Testamentary Trust. Therefore a beneficiary might distribute rent from a Property to their children (tax-free up to $18,000 for each child). There are many other benefits to Testamentary Trusts, such as asset protection.
Challenging an unfair Will
Generally the judicial system prefers not to interfere with the Will made by a Testator. However, the following people can challenge a Will in case they find the Will to be unfair under the Administration Act, 1903-
(a) the widow or widower of the deceased
(b) the person living as the de facto partner of the deceased immediately before the death of the deceased person
(c) a former spouse or de facto partner who was receiving, or entitled to receive, maintenance payments at the time the person died
(d) a child of the person who died, or a child conceived but not born at the time the person died
(e) a grandchild of the deceased who at the time of death of the deceased was being wholly or partly maintained by the deceased or whose parent has predeceased the deceased or a grandchild conceived but not born at the time the person died (note: not all grandchildren will be able to apply)
(f) a parent of the deceased
West Australian law also recognizes:
(g) same-sex de facto relationships
(h) de facto relationships where either of the parties are married to someone else or in another de facto relationship
The above changes apply to a person who died on or after 21 September 2002. In certain circumstances the definition of parent will also include same sex partner in a de facto relationship. The Court will interfere only if it thinks the Will, or the distribution, does not properly look after the needs of a person towards whom the deceased had a duty to provide for. The burden of proof is on the challenger to prove-
(a) the relationship to the deceased
(b) why the challenger thinks that he is entitled to a share or a larger share of the property
(c) why does the challenger believe that the will (or if there is no Will, the law) does not provide well enough for you.
Time Limit for Applying
The challenger must apply within six months of the grant of Probate of the Will or, if the deceased did not leave a Will, within six months of the grant of letters of administration. This six month time limit may be extended in some circumstances, but extensions are quite rare. Every effort should be made to apply within the time limit. The Court will take a number of things into account, including:
(a) how any change to the Will could affect other people mentioned in the Will
(b) the sort of property involved and its value
(c) the ages of the surviving dependents
(d) the relationship to the deceased of other dependents
(e) the needs of other dependents and those of the applicant
(f) the way the applicant acted towards the deceased and their relationship in general.
CALL US ON 08 6364 0410 for free over the phone consultation.