Deceased Estates

Why Choose Us for Deceased Estates?

Dealing with a deceased estate can be an overwhelming and emotional experience. At Mildwaters Byrth Lawyers & Conveyancers, we understand the complexities and sensitivities involved in managing and administering deceased estates. Our team, with extensive experience and local knowledge, is here to provide compassionate and expert legal support, ensuring that the process is handled smoothly and in accordance with your loved one’s wishes.

Wills and Estate Planning

Planning for your family’s future after you’re gone is an essential legal task. Estate planning involves considering and organising your financial and legal affairs to ensure your estate is handled according to your wishes. Here’s how we can help:

Legally Binding Wills

A legally binding will is the cornerstone of any estate plan. We help you prepare your will, ensuring it meets all legal requirements. This includes advising on special aspects, such as providing for blended families, preserving farming assets, and dealing with potential claimants.

If you have a blended family, we can help provide your spouse with financial security using joint ownership and other means.
We can preserve farming assets for a child that may become a farmer in future while still providing for your children that don’t become farmers – even when your children are still very young.
We can advise on how to leave out potential claimants and ways to avoid a claim against your estate.
We provide solutions for children facing financial difficulties, impending bankruptcy, shaky relationships, or problems with drugs, alcohol, or gambling.
We offer strategies for providing for children with disabilities.
We help integrate your superannuation into your will.
We can handle assets held in companies, trusts, and partnerships.
We provide options for dealing with any tax issues that may arise during the administration of your estate.
We advise on the powers the executors should be given to administer your estate.

Power of Attorney and Advance Care Directive

At the same time as considering your will, we strongly recommend that you also put in place plans for any future incapacity. We can prepare a Power of Attorney and Advance Care Directive to ensure that if you somehow become unable to make decisions about your finances, medical treatment, or living arrangements, the person or persons you trust can do so unhindered.

Proper Financial Provision for Your Family

Have you thought about how your family would cope financially if you were gone tomorrow? This is the crux of wills and estate planning. To help you consider whether you have made proper financial provision for your family, answering the following questions will help:

If you died tomorrow, would your family have immediate access to sufficient funds to provide for their immediate living expenses until your estate could be sorted out?
Do you have debts such as a mortgage that would be paid out by insurance cover if you died tomorrow so that your family wouldn’t have to worry about being responsible for them?
Would your family have financial security due to owning a home to live in or would they be able to buy themselves a home with a life insurance payout after your death?
Would your family have enough money to live on from your savings or from the proceeds of a life insurance policy if you died tomorrow?

If you answered no to any of these questions, it is important that you prioritise your estate planning. We can help you to make sure that your family would be taken care of if you were no longer here to do it yourself.

The Risks of DIY Will Kits

Using DIY will kits might seem like a cost-effective solution, but it comes with significant risks. Here’s why you should consider professional help:

Misinterpretation and Errors

Writing a will involves more than just listing your assets and beneficiaries. Legal language and requirements are precise, and a layperson might unintentionally create a document that doesn’t reflect their true intentions. Mistakes such as not initialling amendments or attaching documents improperly can invalidate the will.

As Joel notes, people write their wills in a manner in which they think they mean one thing, but what they actually end up writing is something completely different.

Additional Costs and Complications

Even if a DIY will is technically correct, it often requires additional legal work to meet court standards. This includes filing affidavits to prove the will’s validity, leading to unexpected expenses.

As Kylie notes, with Will Kit wills, we have to do that additional affidavit, which is an additional cost at the time somebody passes away. And that can just be the start of the problems that come with this type of will.

Incomplete Coverage

DIY wills often fail to address all aspects of an estate, particularly the residuary estate. This oversight can lead to portions of the estate being treated as if there was no will at all, causing disputes among heirs.

Kylie has observed, many times, how parties actually forget they’ve got a lot of other items and assets and they end up not addressing their residuary estate, which means, all “the leftovers”.

Common Misconceptions About Wills

Popular media often perpetuates misconceptions about wills, such as the idea of a dramatic will reading. In reality, the process is more straightforward but equally important to get right.

Joel notes that unlike many American TV shows and films, there is no such thing as a “will reading”. What happens is that executors and residuary beneficiaries are entitled to a copy of the will, which is usually distributed at the first meeting.

The Importance of Professional Wills

Engaging a professional lawyer to prepare your will ensures that all legal requirements are met and that your wishes are clearly and accurately documented. Lawyers are trained to ask the right questions, think through various scenarios, and provide advice on how to structure your estate effectively.

This expertise can prevent the common pitfalls of DIY wills and give you peace of mind knowing that your estate will be handled according to your wishes.

You might see the will kit and think you can think things through, but when you’re with a lawyer, a good lawyer will ask you questions that you’ll need to think about and discuss with family members, before the will is finalised, saving heartache, confusion, and conflict later.

Get in Touch

Whether you are preparing a will or planning for farm succession, professional legal guidance is indispensable. DIY solutions may seem attractive due to their low initial cost, but they often lead to greater expenses and complications in the long run. Engaging a lawyer ensures that your wishes are clearly articulated, legally sound, and effectively implemented, providing peace of mind and protecting your family’s future.

Contact us today so, together, we can ensure your estate and farm succession plans are in order. It’s an investment in your family’s future that you won’t regret.

IS THERE A RUSH TO SORT OUT DECEASED ESTATES?

The short answer is no.

There is no time frame within which an estate must be wound up.

In the short term, you can just concentrate on the most pressing things such as:

checking the Will to see if there are any funeral wishes in it
informing relatives and friends
planning the funeral.

WHO PAYS FOR THE FUNERAL?

The executor of the Will has the authority to arrange the funeral and the funeral expenses are generally paid out of the estate.

Although bank accounts are generally frozen until an estate can be sorted out, banks will usually release funds to pay for the funeral in full, prior to the administration of the estate being completed.

If someone other than the executor arranges the funeral, they can potentially put themselves in a position where they may become liable to pay the funeral account, if the executor denies their claim to have the funeral account paid from the estate.

DO I NEED A LAWYER?

You can administer an estate without the help of a lawyer.

How challenging the administration of the deceased estate will be, will depend on various things.

If the estate consists of a bank account with funds of less than $50,000 and some personal items and other similar assets that can be distributed without a grant of probate, you may not need a lawyer to sort the estate out.

If a grant of probate is required, it will be more difficult to administer on your own.

Circumstances in which probate will be required include:

where there is land registered in the name of the deceased in their sole name or as a tenant in common
where the bank accounts held in the name of the deceased total more than $80,000
if there is an accommodation bond due to the estate by an aged care facility of over $80,000

You may also need a lawyer to help sort through the paperwork and fill out all the forms required. The amount of paperwork, the documents required to be included, and the persistence required to redeem assets such as superannuation can be challenging at the best of times, let alone when you are going through an emotionally difficult time.

WHAT ABOUT JOINTLY-OWNED ASSETS?

Assets owned by the deceased person in joint names with another will automatically revert to the surviving owner by the registration of the death of the deceased owner.

In the case of bank accounts, your bank will generally require a copy of the death certificate to register the change.

In the case of land, an application to register death by survivor must be prepared and registered with the Lands Titles Office.

WHAT IS PROBATE?

Probate is the process of having the Will proved and registered in the Supreme Court of South Australia.

It is generally required by the law of South Australia, where an estate is worth more than $80,000 or where the estate contains real estate.

Once probate has been granted, the administration of the estate can proceed.

WHO APPLIES FOR PROBATE?

The executor of the Will usually applies for probate.

If there is more than one executor, one of them, all of them or a combination of executors can apply for probate.

WHAT IS REQUIRED TO APPLY FOR PROBATE?

Applying for a grant of probate requires the preparation of the following documents:

Executor’s Oath
Draft Grant of Probate
Affidavit of Assets and Liabilities

The Affidavit of Assets and Liabilities sets out the assets and liabilities of the deceased as at the date of death and includes the value of each item at that time.

Sometimes additional documents are required to accompany the usual documents prepared to apply for probate.

This can occur if, for example, the Will has not been prepared in accordance with the law.

HOW LONG DOES IT TAKE TO GET A GRANT OF PROBATE?

If an estate is straightforward, it generally takes about four weeks to prepare the probate documents, four to six weeks for the grant of probate to issue, and another four to five weeks to finalise the administration.

Therefore, the administration of a simple estate requiring a grant of probate can generally be completed in three and a half to four months.

This time frame can be longer for numerous reasons including:

if there are assets such as a partnership interest that require work by an Accountant to complete financial statements to determine the value of the partnership interest so that this can be included in the Affidavit of Assets and Liabilities
if there is a deficiency in the Will that requires additional documentation to be prepared after taking further instructions from family members
if the executors are not in agreement about any facts required to prepare the probate documents
if there is a caveat filed in the Supreme Court challenging the validity of the Will

WHAT HAPPENS TO DECEASED ESTATES IF THERE IS NO WILL?

If there is no Will, the law of intestacy applies.

This law provides for how the assets of the estate are to be distributed.

It also describes who has the right to make an application for Letters of Administration (which is a similar process to applying for Probate).

The law of intestacy in South Australia states that, if a person has a spouse and children and they die without a Will, the spouse receives all of the personal effects of the deceased, the first $100,000 of the estate and a half share of the rest of the estate. The remaining half of the rest of the estate is shared between the children of the deceased.

The effect of the law of intestacy depends on whether the deceased had a spouse, a domestic partner or children or some of these or all of them.

WHAT DO I NEED TO DO IF I HAVE BEEN LEFT OUT OF A WILL AND I WANT TO MAKE A CLAIM?

Firstly, please seek legal advice immediately as there are time frames within which you need to act if you are to take advantage of your right to make a claim.

Next, compile a list of your assets and liabilities and their value to give to your lawyer so that your lawyer can give you proper advice about your entitlements.

And, finally, make sure that you act promptly in accordance with your lawyer’s advice to ensure that you protect your right to make a claim.