Wills & Estates Lawyer

Wills And Estates

Estate Planning

Preparing for the eventuality of death is not pleasant, but it is necessary. A Will is the best way for you to ensure the division of your estate is made according to your wishes, securing the financial future of your family upon your passing. It will also allow your family to have the peace of mind during what is sure to be an emotional time.

On the other hand, if you should die without a Will in place, it will be up to the law to determine how your estate is distributed. Unfortunately, this can result in an outcome that is against your wishes or at a disservice to the people you love.

As Franklin Family Law, we recognise the emotions surrounding wills and estates, and can help make the entire estate planning process much easier for you by providing legal guidance and support. We will work with you to identify your unique circumstance, and develop solutions that work best for your situation.

We understand that discussing the legalities of financial matters is awkward for a lot of people, but unfortunately sometimes it has to be done! 

Estate Administration

The death of a loved one is challenging enough without the added stress of dealing with their estate. We can assist you in making sure all estate matters are handled efficiently by supporting the executor of the will. Estate administration is often a time-consuming and complicated process, and having a family estate lawyer can help make the process easier to manage.

An executor is someone who is appointed to manage the administration of the estate according to the wishes of the deceased. This may include collecting all assets, paying all liabilities, and distributing the estate according to the deceased’s last Will.

In general, it can take anywhere from 6 months to several years for an executor to administer an estate. It usually depends on the terms set out in the will and also any disputes that may arise.

Franklin Family Law has a specialised team of lawyers who can assist you through this process. We have the resources and expertise to guide you through estate administration and make it more efficient for all parties involved.

• Have you been named an executor in a Will?

• Are you a family member of a person who died without a Will?

• Are you a beneficiary of an estate?

We can provide you with legal advice and representation to ensure your legal rights and duties are met.

FAMILY PROVISION APPLICATIONS

A family provision claim is an application to the Supreme Court for a share or a larger share from the estate of a deceased person. 

You can make a family provision claim if you: 

• are an 'eligible person', and 

• have been left out of a will, or 

• did not receive what you thought you were entitled to receive.

Legislation in each state of Australia stipulates that a family provision claim must be filed within various time frames from the date of death.  It is therefore important to get advice early to ensure that you do not miss the deadline in your state.

Who is eligible to make a family provision claim? 

A family provision claim can only be made by an 'eligible person'. 

An 'eligible person' includes: 

• the wife or husband of the deceased 

• a person who was living in a de facto relationship with the deceased (including same sex couples) 

• a child of the deceased (including an adopted child) 

• a former wife or husband of the deceased 

• a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased 

• a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death.

If you are an eligible person, or think you may be,  and you think you are entitled to make a claim on the deceased estate, you should get legal advice urgently.

Mediation

In our experience, most family provision claims are resolved through mediation thereby avoiding the cost, stress and time of court.  

In family provision claim matters, the court will refer the parties to mediation to provide an opportunity for the parties to reach a settlement. 

What will the court consider? 

If you are unable to reach a settlement at mediation, the court will be required to determine your application.  Before making an order, the court will consider the following: 

• the relationship between the applicant and the deceased person 

• any obligations or responsibilities owed by the deceased person to the applicant 

• the value and location of the deceased person's estate 

• the financial circumstances of the applicant, including their current and future financial needs 

• whether the applicant is financially supported by another person 

• whether the applicant has any physical, intellectual or mental disabilities 

• the applicant's age 

• any contribution made by the applicant to increase the value of the estate 

• whether the deceased person has already provided for the applicant during their lifetime or from the estate 

• whether the deceased person provided maintenance, support or assistance to the applicant 

• whether any other person is responsible to support the applicant 

• the applicant's character 

• any applicable customary law if the deceased was Aboriginal or Torres Strait Islander 

• any other claims on the estate 

• any other matter the court may consider as relevant.

Our team of family provision lawyers are here to answer your questions about contesting a will and assisting you in obtaining a fairer share of an estate to which you may be entitled. 

Probate And Letters Of Administration

In the event of a person’s death, the executor of their estate will often be required to obtain a grant of probate or letters of administration. 

A grant of probate is the process of formally proving that a Will is valid. Letters of administration is similar to grant of probate, except that it’s only required when there is no Will, or when there is a Will but it does not appoint an executor who is willing and able to act. It may also be granted in the event that a will doesn’t dispose of all of the estate.

Simply put, both grant of probate and letters of administration are granted as part of the formal process of proving the Will, as well as ensuring that the executor is willing and able to administer the estate.

If you’ve been appointed an executor of an estate, you will need to apply for a grant of probate. You’ll be required to prepare various legal documents which will then be filed at the Probate Registry of the Supreme Court, along with a Court filing fee.

The requirements around these documents are complex and strict, which is why we recommend seeking legal advice from a probate lawyer. Our team at Franklin Family Law are well-versed in the legalities surrounding these applications, and are ready to help you with the process.

Contesting A Will

It’s not uncommon for disputes to come up around a Will. Do you feel you’ve been overlooked in a family members will? 

At Franklin Family Law, our wills and estate lawyers can help you resolve your will dispute with your best interests in mind. Let us handle the stress so you avoid dealing with the legalities on your own.

There are many instances where someone might want to contest a will, including:

• Questioning the validity of a Will

• Removing an executor

• Alleging undue influence or improper conduct

• Cy-Pres applications

• Informal Wills

• Interpretation of Wills

If you’re on the other side of this legal battle, we can help you too. Defending a Will is one of the key tasks for an executor, but it can be incredibly difficult to do on your own. We highly recommend seeking legal advice from experienced will and estate lawyers if you’re expecting to face a situation like this.

Wills and Estate Lawyers in Sydney and Brisbane

If you’re in a situation which requires legal assistance with regards following the death of a loved one, our will estate lawyers near Sydney and Brisbane can help. Our team of family estate lawyers are experienced in resolving even the most complex will and estates, and we are here to lend you a hand.

We offer a complimentary discovery call where you can find out more about how our team of estate lawyers can help you navigate the legalities around wills, estates and succession law.

However, if you’d like a more detailed insight and strategy that is tailor made for your case, we offer an initial consultation that is charged at a flat rate fee of $330 (including GST).  For this fixed fee, you’ll have access to a lawyer that will offer up-to-date legal advice and guidance, so you have a more accurate view of what your case will entail.

Frequently Asked Questions

To allow for more time to deal with your specific circumstances during our initial consultations, we’ve prepared this handy FAQ that covers some general topics and help you understand property and financial settlements a little better before meeting with our team of family lawyers in Sydney or Brisbane.

What is a Will?

A Will is a legal document that clearly states your final wishes, particularly with regards to how you want your estate to be distributed in the event of your death.

How do I prepare a Will?

Depending on your case, preparing a Will can be incredibly complex. Among other things, you’ll have to make clear decisions about:

• Who you want to appoint as your executor

• Who you want to appoint the guardian of your children under the age of 18

• What assets and liabilities you have

• How you’d like to distribute your assets in the event of your death

We strongly recommend engaging a will and estates planning lawyer to guide you through the process. 

What happens if I die without leaving a valid Will?

When a person passes away without making a valid Will, that person is considered as dying “intestate”. In these cases, that person’s estate will be distributed in accordance with the laws of intestacy.

If your family is not adequately provided for after your estate has been distributed by the State Government, they may apply for a family provision order. The Court will then decide if your family members are entitled to receive a larger share of your estate.

Preparing a valid Will is a kindness everyone should give their family. Not specifying your wishes surrounding your estate can lead to a lot of stress for your family and a long litigation process too. Franklin Family Law is proud to have a team of wills and estate planning lawyers who can help you prepare a valid Will or testamentary trust so your family’s financial future will remain secure in the event of your death.

Is it possible for me to change my Will?

Yes, it’s possible to change your Will, and we advise you to do so whenever you experience a major change of circumstance, including:

• Marriage or divorce

• The birth of children or grandchildren

• The death of an executor

• The death of a beneficiary

• A change in your financial situation 

Is there a time limit for contesting a Will?

The answer to this depends on the State Government where the deceased lived.

In Queensland, there is a time limit of six months after the date of death for you to provide your notice to the executors of the estate that you intend to contest the will using a family provision application. Once that notice has been provided, you will have nine months from the date of death to file that family provision application with the Court.

In New South Wales, there is a time limit of twelve months from the date of death to file your family provision application with the court.

In both states, you may be eligible for an extension. However, this is up to the Court’s discretion, and it’s very difficult to obtain the approval. If you are considering a Will dispute, we highly recommend that you seek legal advice as soon as possible so you can file an application to the Court within the time limits.

Most contested wills are resolved through a mediation process and no court appearance is necessary.

Are you trying to find out if you have grounds to dispute a Will? 

At Franklin Family Law, we will work with you to identify your unique circumstance and develop solutions that work best for your situation. Our team of will and estates lawyers are based in Brisbane CBD, Brisbane West, or Brisbane Southside. Contact us now to find out how we can help you!