An outline of a how a gift over works in a will. A gift over in a will is when the person designated to receive it has died, the gift then passes over to a substitute person, if so named to take.The substitute beneficiary only inherits if the main beneficiary has already died, not survived the deceased or died before attaining a vested interest.
“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 …
The word “issue” is a legal term meaning all of a person’s descendants; not just their children. It is easy to overlook this and the potential unwanted consequences for what is intended, if not used correctly when working out wording in a will.
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.
Not everyone lives and works in the community in which they grew up, surrounded by family and friends.
Many leave to pursue opportunities elsewhere, maybe never to return. Family ties may weaken in time, and contact is lost. What if you want to leave them something in your will?
In succession law the court has discretionary power under family provision legislation to order provision from a deceased person’s estate to “eligible” applicants and in certain circumstances. It is not automatic.
The legal rules were introduced to remedy situations where willmakers failed to leave adequate provision for close family and certain other dependents as defined. It is not for second bites at the cherry. The court has wide power in deciding who pays costs of proceedings.
The residue of a deceased person’s estate is basically what is left over after the payment all costs in connection with the estate. That is, payment of funeral expenses, costs incurred in the administration of the estate, payment of the deceased’s debts, discharge of any liabilities and the distribution of any specific gifts made under the will.
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.
Per stirpes (Latin, meaning by the stock) and per capita (by the head) are ways in which a person’s estate can be distributed among their descendants. They are terms referring to the different ways of distributing property among a group or class of people.
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”.
Many people own property with someone else. An important issue to consider upfront are what happens when one of them dies. Who can take their interest, is this what they want and if not, can they make provision for it in their will?