Illegitimate children, ex-nuptial children – can they inherit?

illegitimate children, ex-nuptial children, contest a will, challenge a will, inheritance, inherit, what is an exnuptial childIllegitimate children or ex-nuptial children are those born outside of marriage. Changes to the law mean that the inheritance rights of illegitimate children are equal to those of legitimate children.  So this means they can inherit. What happens if no will was left, (an intestacy) either by an ex-nuptial child or their parent? Who inherits then? Can an ex-nuptial or illegitimate child be eligible under succession law to make a claim on a deceased parent’s estate?
More

Family provision – who is eligible to claim from a deceased estate?

Left out of a will or seeking more –  who can apply for provision?

family provision, eligibile person, will, deceased estate, challenge a will, contest a will, Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.

The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.

More

Residue of a deceased estate, the residuary estate – what is it?

What does the ‘residue’ or ‘to give the residue of my estate’ mean?

 

residue, deceased estate, wills, making a will, administration, probate The residue of a deceased person’s estate is what is left over after the payment of all expenses in connection with the estate.

Expenses include payment of the funeral, costs incurred in the administration of the estate, payment of the deceased’s debts, the discharge of any liabilities of the deceased, and the distribution of any specific gifts made under their will.

The residue or residuary estate is property of the deceased not disposed of by the terms of their will.

More

Codicils: what is a codicil, making minor changes to a will

Updated 11 October 2019.

What is a codicil to a will?

A codicil is an additional document used to make minor changes, amendments or alterations to an existing will. The codicil document must be signed in front of witnesses in the same way as for a will, see below. Once completed the codicil is kept with that will.  More than one codicil may be made.

The word ‘codicil’ comes from Latin, meaning a letter or note. Together with the will document, being testamentary documents they only operate when you die.  A codicil is not used for making changes to other documents such as a trust deed for example.  To do that, you need to follow the procedures set out in the trust deed, and seek legal advice.

Examples of a minor change are when you want to change your executor/s or trustee/s, appoint a new one, add a specific gift (legacy) to a particular person or delete it.  Lawyers tend to prefer that a new will is made so as to avoid potential difficulties down the track with interpretation, and the extra costs that arise in resolving them.

Codicil to an existing will or make a new will?

As described above a codicil is a short document which may be used to make a minor change to an existing will.  If the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies.  Seek professional advice.

This article looks at:

  • What is a codicil?
  • Making a legally valid codicil
  • Codicils must refer to the date on the correct will
  • Revoking part of a will by a codicil
  • Reviving an earlier will by a codicil
  • Meaning of ‘will’ includes a codicil
  • How must codicils be signed?
  • Storing a codicil
  • Potential problems
  • An undated, unsigned ‘homemade’ codicil 

More

Storing a will – ensure it is safe and secure

Storing a will for safekeepingstoring a will, will storage, safe custody for a will, willmaking, deceased estate,
Wills are important private and confidential documents which take legal effect on the death of its maker.  An original will should be stored in a safe and secure place after being signed and witnessed.  Ideally the place should be fireproof, and protected from tampering or destruction. 

Willmakers should consider their personal circumstances, family and other relationships when considering storage options. In some situations storing a will at home is not advisable if it is likely persons adverse to what it contains can access it. 

And make sure you inform your nominated executors or legal personal representatives of your original documents. 

More

Pets – making provision for their care by will

Pets are family – make a plan for their care

Pets in wills, cats, dogs, wills, provision for animals, WillsHub

Who will look after me?

Pets and companion animals are important parts of our lives and family. Legally a pet is regarded as property, not a ‘person’ (although we might think of them that way!), belonging to their owner.  Being property means that a pet cannot hold title to property and so cannot take a direct gift of money as a beneficiary under a will. 

As owners, it is important to consider options for their care should you become unable to continue and for when you die.

Expressing your wishes as to what you would like done and documenting a plan for their welfare is helpful to family, friends and your executors.  Make sure you let them know.

More

Update a will to avoid unintended outcomes

Featured

By B Stead

Why update a will?

Updating a will might seem a troublesome chore, but circumstances can change from the time it was made.  The changes might produce unintended and unwanted outcomes in the event of death.  Therefore reviewing a will is important to keep its contents in line with intentions.

Regularly reviewing your will every few years or so, in light of changes in your life, is worth doing, as life events and matters such as those outlined below can affect a will.  Everyone’s situation is different so in all cases seek professional legal advice from a solicitor providing services in this area.

More

A family tree can be useful, with or without a will

Why do a family tree?

family tree, wills, inheritance, intestate, intestacy,

A family tree is a record of information about family relationships. It is useful to have a basic outline of close family/next of kin relationships to keep with your personal papers.  This maybe unnecessary you might think.

However a family tree can be helpful in preparing to make a will, especially where large, complex estates, blended families and business succession issues are involved.  More

Why make a will and what can a will do?

Featured

Why make a will and what can it do?

Dying without leaving a will, or leaving an invalid one, is to die intestate.   Dying intestate means property left (the estate) is distributed according to the intestacy law.  The intestacy law has been prescribed by legislation as the ‘default’ rules to apply in these circumstances. The problem is that the intestacy formula for distribution may not produce the desired outcome.

More

Joint tenancy or tenancy in common – considerations for inheritance and will-making

Joint tenancy and tenancy in common give different outcomes when an owner dies

Joint tenancy and tenancy in common are ways of owning property with others. Each works differently when an owner dies, see graphic below.  This impacts who will inherit the deceased owner’s share.  These graphics seek to highlight how each tenancy works.

In a joint tenancy, when one owner dies, the surviving one automatically owns the whole property.  This happens independently of any will (and probate) because of the right of survivorship attaching to this tenancy type.

More

What is a will?

Featured

A will is a testamentary document

A will is a legal document, often referred to by lawyers as an ‘instrument’, setting out what a person intends to have happen to their property, (real and personal), and other matters, when they die.  It is the legal way to record a person’s instructions and wishes on how they want their property distributed on the event of their death, and who is to responsible for carrying out those wishes.  Because it is to take effect only on death, a will is referred to as being ‘testamentary’.  A testamentary document or instrument is one which its writer intends, at the time of writing it, to come into effect when they die, and not before.  More

Per stirpes, per capita and deceased estate distribution

Per stirpes and per capita distribution of a deceased estate

Per stirpes and per capita are Latin terms referring to the ways in which a person’s estate can be distributed among their descendants, their children, grandchildren and so on.  A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended.   For more see this article on using the words “issue” and “children” in wills.

Per stirpes and per capita are different ways of distributing property among a group or class of people, either under a will or when there isn’t one. They address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares. More

Issue and children in wills – say what you mean

“Issue” is a legal word often used in wills regarding estate distribution

Language can be confusing. Words like ‘issue’ and ‘children’, may be thought of in one way by some, but be interpreted differently by others, see graphic.

Meaning of issue, meaning of issue of parents, issue and children in wills, next-of-kin, inheritance, succession, legal definition, meaning of the word 'issue'They have the potential to generate different interpretations and outcomes.

The problems may not arise until the will-maker has passed away; leaving the question what did they really mean?  This article is about the meaning of issue in wills.

 

More

Co-ownership & tenancy: jointly owned or in common?

Co-ownership, joint tenancy, tenants in commonMany people own property with another person in a co-ownership arrangement.  Spouses or partners typically own their residence together in joint names, family members; or  friends may own a property together for investment.

An important issue to consider upfront when buying property are the consequences of when a co-owner dies. How the property is owned between people, that is, its tenancy, can give very different outcomes on death.  Ideally these should be considered at the time of purchase.

Questions to ask include who can take a co-owner’s interest when they die?  Would this be what they want to have happen?  If not, can they state their intention in their will? Or is the property owned in a way that on death the interest automatically passes to the survivor/s outside of a will, as in joint tenancy?  This article looks at tenancy issues.  More

When disposing property by will check the ownership – what can and can’t be disposed of by will

Disposing property – what can be disposed of by a will and what can’t – property ownership and control issues

disposing property by will, what property can be disposed of by will, Property ownership, will making, company shares, units, trust,

Only personally owned property may be dealt with by a will.

Disposing property by will, in the will-making process requires considerations to be given to what you own in your individual name, as opposed to what you might control, see further below.  As only property owned in a personal or individual name can form a deceased estate, it is only this which can be transferred by will, (or the rules of intestacy).

Other property may be owned in the name of a company or trust.  In these entities an individual may have control through shareholdings or a power of appointment.  When it comes to making a will, it is important to remember that such assets won’t form part of a person’s deceased estate and therefore cannot be disposed by their will.  See the table below for examples of what are estate (disposable by will) and non-estate assets. Making a list of property, money and things to be disposed of and who owns what is important. More