Renouncing executorship and probate – when an executor does not wish to act

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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.


Note, if you are looking for executor services, you can find a lawyer or law firm to do this by contacting the law society in your state/territory for referrals: links here. 
Alternatively the public trustee in your state/territory, links here, also provides executor services, as do some non-government providers including banks, even if they were not consulted when the will was made.    

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.

So in other words, can you resign as executor of an estate? Yes, providing you have not intermeddled in the estate already, see further below on what intermeddling means.

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’.

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Witnessing a will – who can be a witness & what is required?

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Who can witness or attest the signing of a will for it to be valid in law? And what must they do?

The legal formalities to make a valid will require the will-maker to sign their will in the presence of at least two people, acting as formal witnesses to the event.  Executing a will in front of witnesses fulfils a protective function.

Witnessing a will – key points:

1. The will-maker must sign the will first in front of two or more witnesses, all present at the same time and in the same place.
2. Witnesses must be mentally competent and be able to see the will-maker make their signature, (the attestation) or other sign as appropriate.
3. At least two witnesses having attested the will then sign their names; in confirmation that the will-maker’s signature, made in their presence was genuine.
4. Anyone likely to inherit under the will, ie a beneficiary, including their spouse/partner should not witness it – although the law has changed in some states and in others exceptions are permitted.  Seek legal advice.

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Intestacy rules – who is entitled to inherit?

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Dying without a will (intestate) – who inherits?

Intestacy is when you die without leaving a will.  You are said to have died “intestate”.  In the absence of  instructions left in a valid will, who will inherit your property?  Succession law contains strict rules to deal with this problem.

This is an outline of the application of the intestacy rules. They specify the order of entitlement as to who inherits and in what proportion, as well as the provision of a sum of money (statutory legacy) for the spouse or partner.   More

Update a will to avoid unintended outcomes

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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.

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Why make a will and what can a will do?

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By: B Stead

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.

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Making a valid will – what are the requirements?

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By: B Stead

Leaving a valid will effective under the law

Making a valid will is important to its effectiveness.  The word ‘valid’ in law means to be legally effective and having legal force.Who else needs to sign a will?

A will documents a person’s intentions for what they want to have happen when they die, see What is a will.  It contains their instructions on who is to inherit their property and how, who will administer its disposal and any preferred arrangements for their funeral, .  If their intentions are to be legally effective, and ultimately put into effect, the will needs to be valid and comply with the legal rules.

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What is a will?

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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

Dying intestate – when there is no will left or an invalid one

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By B Stead

If a deceased person has not left a will, or if no document appearing to be a will can be found, they are said to have died intestate.  Here is an outline on how succession law rules operate to distribute an intestate person’s property; who is entitled to inherit.

The meaning of ‘intestate’

‘Intestate’ is a defined term in all state and territory legislation dealing with intestacy.  It is defined with similar wording throughout, such as that in section 102 of the Succession Act 2006 (NSW):

An intestate is someone who has died and either not left a will or left one which does not dispose effectively by the will all or part of their property. More

Who can make a will?

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By B Stead

Who can make a will to dispose of their property?

Those who can make a will, change or cancel (revoke) a will under state and territory legislation must:

  • be an adult, (18 years and over); and
  • have the required mental capacity in regard to their testamentary intentions, meaning:
    • know (generally) what they own;
    • who they want to give it to, any dependents to be provided for;
    • be able to weigh up the consequences of their choices, potential claims;
    • understand that what they are doing is disposing of their property on death and its effects;
    • understand that on signing their will document, what it states will become enforceable when they die.

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Testamentary freedom in Australian law

It is worth noting what was said in a judgment from a recent case before the Supreme Court of New South Wales about adult children contesting their mother’s will for more.  The Court said the following:

“…a testator is entitled to be unequal in the treatment of her children. Fairness and equality are not

required by the law. Within the limits of the law, testators may dispose of their estates as they see fit. Adult children have no automatic right to share in the estate of a parent. Nor do they have an automatic right to equality between them. That may be the system in European countries, including possibly in the Balkans, but it is not the law in Australia. As I have observed on several occasions, subject to the family provision sections of the Succession Act, freedom of testamentary disposition remains an integral part of our law:….”

And following on he added:

“Related to that point is a principle, …..that the courts naturally respect and give deference to the considered judgments of apparently rational and sensible testators.”1

The Hon. Justice Pembroke, Judge of the Supreme Court of New South Wales.

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Contemplating marriage and making a will

contemplating marriage, will making, marriage, testamentary, getting married, make a will, Normally under Australian succession law marriage cancels a will (that is revokes in legalese) – unless the will was made in contemplation of marriage.

In addition to marriage, legislative amendments in some states/territories such as South Australia, Tasmania and the ACT, now provide for people contemplating entering into a registered relationship or partnership to make arrangements in their will.  However the legislation on this topic of making a will when contemplating marriage varies across the jurisdictions.

It is important to check what the provisions are for where you live if you are planning on making a will ahead of getting married or entering into a relationship.  Specific legal advice and assistance should be sought. A brief look follows.
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Contesting a will – time limits on making an application

Time limits to contest a will

Time limits under succession law on family provision limit when you can contest a will.  Most states and territories family provision legislation provide for some time limit, often the period is six months but it can vary. time limits, family provision, family provision law, farm, Western Australia, contest a will,

The time period might start from the date of death or from when probate is granted.  If you are thinking of challenging a deceased person’s will, and you are an eligible person under the law, it is important to be mindful of the time limit.  To find out when see the legislation on family provision or testator’s family maintenance in this table, or consult a local solicitor.

But what if the time period has passed? Most legislation provides the Court with a discretion to extend the time within which to make an application, but it is not automatic and the Court’s permission to file must be sought first. Legal assistance is essential.

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“Contrary intention” in succession law and will-making

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Contrary intention are words used in Australian succession legislation on wills and the administration of deceased estates. Some examples are given below of the range of matters where the law allows for a willmaker to express a contrary intention in their will to the statutory rule.

Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen.  A contrary intention may be expressed in a will or appear in a will.

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Risks

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“The range of “risks” to which a will maker, his or her property, interested parties or members of the legal profession may be subject is probably infinite in its dimensions.  Risk cannot be eliminated from life, or, it seems, from death.

The Hon Justice Lindsay, Equity Division, Supreme Court of New South Wales,
Seminar presentation to the Succession Law Committee of the Law Society of New South Wales, 2013.

 

Meaning of words in a will – resolving differences in a farmland context

meaning of will, farm succession, farm inheritance, meaning of plant and equipmentThe meaning of words and phrases used by a willmaker when leaving a specific gift may adequately express their intentions, at least to them at the time.  However sometimes matters connected with the gift may arise down the track during administration of the estate.

These may generate uncertainty for executors as to the right course of action when distributing the estate to the beneficiaries according to the deceased’s will. In a recent Western Australian case1 the executors sought directions from the Court concerning the interpretation of a clause disposing of farmland.

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Leaving an unsigned will – second thoughts or intended last words?

unsigned will, informal will, invalid will, unexecuted will, testamentary intentions, will-makingSometimes an unsigned will is left in situations where the willmaker, in consultation with lawyers, has been in the process of making a new will, but died before the requirements to make a valid legal document were completed.

Leaving such a testamentary document raises important questions. Did the deceased approve of the contents of what is a draft will, and so intended it to be their last will –  but simply didn’t get around to executing it according to the legal formalities? Or were they unsure and wanted alterations?  Can an unsigned will, that is an unexecuted will, or informal will, as lawyers often call them, even be admitted to probate by the Court? The Court’s dispensing powers are discretionary – it depends on the circumstances in each case.

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Meaning of stepchild when contesting a will

Inheritance in domestic relationships and stepchildren

stepchild, family provision, testator's family maintenance, 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.

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Stepchild contesting a step-parent’s will – Queensland

stepchild, willshub, step-parent, family provision,When a stepchild has been left out of the will of a deceased step-parent

In a Queensland case1 a stepchild sought provision out of the estate of his step-mother, a widow.  Her husband, and the applicant’s father had pre-deceased her. She had no children of her own, that is no natural children, so no descendants: only the applicant her step-child, and he was an only child.

Before the applicant’s father died, he and his wife each made wills in similar terms.  Basically these were all to each other, then on the first to die, in equal proportions to the the applicant and a nephew.

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Elder Abuse World Awareness Day – June 15

elder abuse, elder abuse awareness day, Today is World Elder Abuse Awareness Day.  June 15 has been designated by a resolution of the United Nations General Assembly, as a day to raise awareness of the need to protect older people from abuse.

Elder abuse is an important human rights issue yet little is known of its extent, it is under-reported.  Not surprising as elders feel vulnerable, are dependent and likely do not have the capacity to do so, or if they did, know to whom to report it.  Aging is a time of increasing vulnerability, of varying dependence on others for support of different kinds, depending on individual circumstances.  Everyone is entitled to a life of dignity and safety in their old age, free of abuse and exploitation.

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Severing a joint tenancy unilaterally

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Many couples own their home together as joint tenants under a joint tenancy.  Under a joint tenancy an important legal consequence to remember with this type of property co-ownership is the legal right of survivorship.

The right of survivorship means that when the first owner dies, their interest in the property is automatically absorbed so that the surviving owner now owns the whole property, see graphic. This is due to the operation of law and is independent of a will.

When the survivor dies, the property then passes according to their will, or if no will left, according to the intestacy rules. For people co-owning property as joint tenants, it is therefore important to review their situations and wills on a regular basis to ensure outcomes on death are what is wanted.

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Estranged child left out of a will – claiming family provision

An estranged daughter, one of two sisters and the only children of their deceased mother, were engaged in legal proceedings in a contest over their mother’s deceased estate.1 In The Supreme Court of New South Wales, it was said that

The case provides yet another example of the high level of emotion that is generated in relation to the distribution of the property of a parent, particularly in circumstances where there is said to have been an estrangement between the Plaintiff and the deceased for some years prior to the death of the deceased.

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When the deceased’s will seems lost or missing – where to enquire?

lost original will, missing wills, 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

Step-grandchildren described as “descendants” and “children”- can they inherit?

Step-grandchildren, will-making, descendants, childrenSome grandparents like to leave something to their grandchildren in their will.  If they have step-grandchildren as well, as is increasingly likely these days, are they to be included in the will too?

If grandparents intend step-grandchildren in their extended family to benefit under their will, then to assist their executors for the efficient administration of their estate, it would be helpful if they could make that clear in their will, as a recent New South Wales case has highlighted.

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When no will is left

When no will is left by a deceased person they are said to have died intestateDying intestate means that their property and things are distributed according to the legal rules on intestacy made by the Parliament in the state or territory where they lived.  Sometimes a person may have left a will, but for some reason a problem arises so that not all of the property can be disposed of.

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Personal items in a deceased estate

personal items, personal effects, belongings, deceased estate, will, willmaking, testator, personal thingsPersonal 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