Inheritance in domestic relationships and stepchildren
A stepchild’s eligibility under the statutory rules for seeking provision from a step-parent’s deceased estate can be difficult.
In a Victorian case1 the executor of a deceased estate applied to the Supreme Court to have a claim for family provision dismissed.
The claim was brought by the adult daughter of the deceased’s former domestic partner, who had died some years before. She had been left out of his will, despite assurances and promises to the contrary. The deceased had left everything to his new domestic partner.
When the original will of a deceased person can’t be found, the task of finalising their affairs and administering their estate becomes more complicated, time-consuming and costly. It is therefore worthwhile to undertake methodical searches of the deceased’s residence, thoroughly searching high and low for a will or testamentary document, including the garage, shed and the like. But what else can be done? Some suggestions follow as to where enquiries might be made. More →
Personal items can have important sentimental value. They may be family heirlooms passed down to keep within the family, with unique stories to tell. Personal items may have little commercial value, or maybe of significant monetary worth in the case of jewellery, antiques, artworks and the like.
What might “personal items” mean in succession law? What happens if you don’t leave any instructions as to who takes your personal things and you die intestate? Who is entitled under the law to take your personal items then? More →
Costs of the parties in a recent probate litigation case1 from the South Australian Supreme Court, were ordered to be paid from the deceased’s estate. Following the trial Gray J gave reasons for making that costs order.2
Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will. For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put into effect. Resolving the problem usually requires making an application to the Court. This causes expense and delay.
It is unfortunate that such genuine clerical mistakes or ambiguities are not picked up during will-making. Can anything be done when they are discovered after death? Can they be fixed so as to preserve what the deceased intended to happen? Or will it result in an intestacy?
Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role. You are not obliged to, but you need to take steps to put that into effect as soon as practical.
Coat of Arms on the Old Supreme Courthouse, Sydney, New South Wales.
Can an executor resign?
There is no requirement that a named executor in a will must accept the role of executorship, even if you had agreed with the willmaker that you would.
If you don’t wish to act when the time comes, and you have not dealt with estate property, you can give up the right to do so. It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning. It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.
A grant of probate is the document issued by the Court of Probate after the examination process. A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More →
By: B Stead Keeping an original will safe and secure is one thing, (see storing a will), but as a practical matter, it is important to let executors know, or family or a trusted friend, of its whereabouts.