Deceased Estates & Inheritance Claims Articles

One of the most common questions I am asked when dealing with Probate matters is: Is there a time limit for the Executor to obtain Probate of a Will? Most people are surprised to hear that the answer is “no”. But that is not the end of the story. Being an Executor is not always… Read more »

From 1 July 2015, all applications for Probate (or Letters of Administration) must be accompanied by an original Death Certificate, or a copy certified by a solicitor. The Probate Registrar has indicated that he will not accept errors on the Death Certificate. This stems from the admirable conviction that the historical records of our State… Read more »

Executor’s Commission

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The question is often asked by those appointed executor of a deceased estate, whether they are entitled to a commission for the time and effort required to do everything necessary to sort out the deceased estate. If the executor is also a beneficiary of the estate or if the will specifically makes provision for the… Read more »

Gifts in Contemplation of Death

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There may be many reasons why a person wants to give away their assets when they know or believe they will soon die. They may never have gotten around to making a Will or won’t get the opportunity to update their current Will. They may want to provide a benefit to someone who has recently… Read more »

Estate Planning Issues for Blended Families

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In my opinion, there is no more important time to consider your estate planning than when you are part of a blended family, whether that involves a second marriage, or a de facto relationship where one or both of you have your own children, or a first relationship with a partner who has their own… Read more »

I am often asked: “But if I die without a Will, won’t it just go to my family anyway?” This statement is basically true, but it is the manner in which your estate would be distributed and the obstacles to be negotiated in order to make it happen that one should be concerned about. The… Read more »

New SA Probate Rules 2015

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On 1 July 2015 some long-awaited changes to the rules governing Probate applications in South Australia came into force. The aim was to make the rules simpler, easier to understand and easier to implement. Having worked with the new rules for one year, here are some things to watch out for when preparing to apply… Read more »

Gifts That Might Fail in Your Will

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The failure of a gift in a Will is called “Ademption”.  For example a willmaker may leave a house in a Will but then sell the house.  The gift in the Will is said to have adeemed or failed. Ademption may also occur as a result of a legal rule, the “doctrine against double portions”…. Read more »

When a property is held ‘jointly’ with a deceased, an Application to Register Death by Survivor document is required to transfer the property into the surviving tenant’s name. The Application and a copy of the Death Certificate are lodged with the Lands Titles Office with the basic registration fee. The Certificate of Title is no… Read more »

Who Can Act As Executor Of A Deceased’s Will?

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If the executor named in a Will cannot act or is unwilling to act and there is no provision for a substitute executor, the question arises as to who can apply for a Grant of Administration (Probate or Letters of Administration) to administer the estate in the original executor’s place? What if the Will does… Read more »

In the case of Mead v Lemon [2015] WASC 71 handed down 26 February 2015 by Master Sanderson in the Western Australian Supreme Court the deceased’s daughter was successful in having her $3 million inheritance increased to $25 million. The deceased’s estate in this matter may have exceeded $1 billion but the amount in dispute was… Read more »

Gifts The Product Of Undue Influence

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Sometimes after an older person dies it becomes apparent that there has been a transfer of property or other assets belonging to the vulnerable older person to another party for nil or less than market value.  Family members not involved in the transaction may wish to explore reversing it.  What remedies are available to the… Read more »

Storage of Last Will in South Australia

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Often I am asked what happens to a Will once it has been executed. Many people have an expectation that there is some central storage area or register of Wills. In fact this is not the case and the storage of a Will is entirely in the hands of the willmaker. So well may you… Read more »

How to Avoid a Deceased Estate Inheritance Claim

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A claim can be made under the Inheritance (Family Provision) Act, 1972 (“the Act”) (known as an Inheritance Claim) on the basis that the Will maker failed to provide for a family member in their Will where they had a moral obligation to do so. We are often asked what can be done to avoid… Read more »

Who Can Make a Deceased Estate Inheritance Claim?

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A claim can be made under the Inheritance (Family Provision) Act, 1972 (“the Act”) (known as an Inheritance Claim) on the basis that the Will maker failed to provide (or to adequately provide) for a family member in their Will where they had a moral obligation to do so. Section 6 of the Act sets… Read more »