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Wills and Estates in Sydney

Too often, a person in Sydney postpones his or her estate planning until it is too late. Preparing a will provides you with a measure of certainty that your loved ones will receive your assets without delay or complex litigation. The solicitors at Go To Court Lawyers have extensive experience with all aspects of the Succession Act 2006 and the Probate and Administration Act 1898 and can help you arrange your testamentary affairs. This article explains some key concepts surrounding wills and estates in Sydney. 

Wills and estates in Sydney

A will is a binding legal document that contains a person’s last wishes for their estate after they pass away. Go To Court Lawyers can provide advice on structuring a will, estate planning, appointing an executor and the distribution of the estate. A deceased estate is made up of some of the deceased’s valuable assets and surviving debts. Some classes of assets never form part of a deceased estate, such as superannuation and insurance policies that have binding death benefit nominations in place, or jointly held assets that revert to the sole ownership of the surviving owner.

Consulting an experienced wills and estates lawyer can provide reassurance in the face of an uncertain future. Unfortunately, it is typical for people to neglect to make a will or fail to regularly update the document. Approximately 40% of adults in Australia die intestate (without making a will), and a notable further percentage have wills that do not reflect their current testamentary wishes or assets.

Who should make a will?

Every adult in Sydney who has testamentary capacity should make a will to explain their wishes for their estate after their death. A minor can only make a will if he or she is married or planning to marry in the near future. Otherwise, only the Supreme Court can authorise a child to make a will if the circumstances necessitate the creation of such an instrument. A child may need to make a will if they are the beneficiary of assets held in trust or are in some fashion already generating income.

Simple wills

 A testator might choose to make a fairly straightforward, simple will. The most simple is one that leaves the entirety of an estate to one person (often a spouse) and also appoints that person as the sole executor of the estate. If this will does not include any individual gifts, appointment of guardians, or special provisions, then this is a simple, clear will. A will can also be a more complex document that includes provision for testamentary trusts, conditional bequests and other complicated legal structures.

In Sydney, regardless of whether the will is simple or complex, it should be a valid formal will drafted according to specific statutory rules. For example, the document should be written, signed by the testator, and properly witnessed by two independent witnesses (neither of whom are the spouse of the testator or a beneficiary of the will). Any changes to a formal will (such as the addition of a codicil) must also be appropriately drafted under the same conditions. A will is considered to be informal if it fails to follow these legal directions.

Wills and estates in Sydney: urgent instruction

Sometimes a solicitor takes urgent instruction from a client because they are dying and wish to make arrangements before they pass away. This type of will is unfortunately susceptible to challenge on the basis of testamentary incapacity. A solicitor will take steps to counteract this potential by meeting privately with the testator and making an assessment of capacity by asking open-ended questions. The solicitor will also make a note of any relevant factors that could inform the testator’s capacity, such as whether they are under medication or exhibiting behaviour that demonstrates a lack of mental acuity.

Are wills registered in Sydney?

While there is no public registry of wills in Sydney, a testator can register their will with a private facility. The NSW Trustee & Guardian can store wills and other documents such as power of attorneys and guardianship paperwork. While it is rarely used service, a testator also has the option to file their will with the Supreme Court of NSW Probate Registry.

Probating wills and estates in Sydney

After a testator dies, an executor files an application for probate with the court to prove the will as valid. This also grants authority to the executor to follow the instructions in the will and administrate the deceased estate for as long as necessary.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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