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Home made will – a good idea?

A home made will is one prepared by the willmaker themselves.  Maybe using a “will kit” or something found online or a digital recording.  However made a home-made will is composed without the services of a lawyer and the benefit of individual legal advice.  This may seem an economical and convenient approach to will-making.  While …

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Meaning of stepchild when contesting a will

storm clouds for 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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Severing a joint tenancy unilaterally

Why sever a joint tenancy? Severing a joint tenancy is relevant to joint co-owners passing on their property interests to their chosen descendants.  Owning property with others in co-ownership can be either as joint tenants or tenants in common.  The consequences of who inherits a co-owner’s share on death are different.  It is important to …

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Lost, missing will – where to now?

lost original will, missing wills,

Missing wills or a lost will seem to be more common than one would think. Some people store important personal documents in unusual places without informing their executor where. Here are some suggestions on next steps after a thorough search has not been successful.

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Probate litigation costs

Court costs, probate litigationIncreasingly, it is not always automatic that costs of challenging a will for more provision will be paid out of the deceased’s estate. Courts may take into account the conduct of the litigants towards each other in regard to their efforts in resolving their differences before hearing.

Rectify a mistake discovered in the will after death

Entry pillars, palm tree lined pathway to the Rockhampton Courthouse, Queensland

Sometimes a clerical error or some other aspect about a deceased’s will means that practically speaking what the deceased intended doesn’t work out. Fortunately all is not lost. Succession legislation provisions give the Court a power to rectify the will to give effect to the deceased’s intentions if the Court is satisfied beyond reasonable doubt that the will does not. An application to the Court for a rectification order must be made within twelve months in NSW. An extension of time may be possible in special circumstances and if the estate has not been distributed. For an application to succeed there must be clear and convincing proof.

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Renouncing or resigning probate: when an executor resigns

renouncing probate, right of probate, right to renounce, renouncing executorship, executor, Renouncing probate of a deceased estate is when a named executor in the will does not wish to take on the role. It is not compulsory. To resign you complete a form provided by the Probate Court in your state or registry, links in this article. These are free to download. Complete the form, sign in front of a witness where required, date it and lodge at the Probate Court Registry. There may be a small fee to lodge the form, contact the Probate Registry. If you want to resign do it as soon as practical.

There is no requirement that an executor must accept the executorship role, even if it was agreed to do so. But relinquishing executorship should be done as soon as practical if you don’t wish to act and have not dealt with the estate, (intermeddle). You can resign your appointment as executor by renouncing your right to probate of the deceased’s will, that is you renounce probate.

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Signing a will, having it witnessed & witnesses

WitnessThe 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.
Signing a will in front of witnesses fulfils a protective function. Can anyone witness or attest the signing of a will? And what must they do?  Read more >>

Probate and a grant of probate – what is probate?

probate

Probate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.

A grant of probate is the document issued by the Court of Probate after completion of an 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. It is also official recognition that the will (which may include codicils) was proved to be valid by the Court and intended to be their last will. This article is about probate, which only applies when a will was left.

Signing and execution of a will – same thing?

witnessing a will, witnesses, attest, sign, make a willSigning a document is not the same thing as having to execute it. We might talk about signing a will but technically, a will is required by law to be executed. So what does execution mean and what has to be done to execute a will for it to be legally valid?

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Storing a will – ensure it is safe and secure

storing a will, will storage, safe custody for a will, willmaking, deceased estate, Wills are important private and confidential documents. An original will should be stored in a safe and secure place after being signed and witnessed. Once all the formalities have been completed and it has been copied, the original will then needs to be kept in a safe and secure place.

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

intestate, no will, will-making, make a willIntestate means dying without a will. But sometimes even if a person has left a will there may be a partial intestacy. This is when the will does not effectively dispose of all of their property. If that happens the identified property falls into the residue of the estate and distributed according to what the person’s will states about disposal of the residue, and if silent, then according to the statutory intestacy rules. Read more on dying intestate. >>

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. 

Issue and children in wills

 

the meaning of issue in wills, deceased estates, the legal term issue, children, descendants, offspring

Language can be confusing. The way that certain words are used in a will may cause difficulties in interpreting what the willmaker actually meant, but unfortunately may not come to light until they have passed away. Two such words are “children” and “issue”.

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Check property ownership

Property ownership, will making, company shares, units, trust,

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).

Among the first considerations in making a will is considering what we own. Only property owned personally can form a deceased estate and be disposed of by will, but it is easy to overlook that property thought of as ‘ours’, is legally in another name. It pays to check who owns what, that which is not in your own name, is not yours to give by will.

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Frequent flyer points – do they pass away with us?

IMG_4056-plane-resizedWith cheap air fares and so much air travel these days, what happens to our frequent flyer points when we die? Can they be transferred? Generally no, but there are some variations, check your program’s terms and conditions to be sure.

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