Our Blog

When all assets have been identified and, if necessary, sold to raise cash, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries. Where appropriate we will be published in the Sydney Morning Herald a special notice requiring anybody with a claim against the estate to provide particulars of the claim within one month.

Where appropriate and instructed by you, I will prepare a distribution statement for the beneficiaries. This may be given to them when they receive their share of the estate showing what the assets were, how much money resulted from any sale of assets they raised and what expenses and debts were paid from the proceeds.

Enduring guardianship ends when you die, or when you revoke the appointment. A joint enduring guardianship will also end if one of the guardians dies, resigns or becomes incapacitated unless you provide otherwise in the form. An enduring guardianship appointment is suspended if the Guardianship Tribunal makes a guardianship order. The Tribunal may revoke the appointment.

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your enduring guardian may wish to seek the opinion of a medical practitioner about your capacity to make decisions before acting on your behalf.

If there is any doubt about your capacity to make decisions, a medical practitioner may have to assess your capacity.

• death is defined by law as the irreversible cessation of all functions of the person's brainor irreversible cessation of circulation of blood in the person's body.

• This order was changed substantially by a law that took effect in relation to anyone who died after 1st March 2010. One of the substantial changes is that the law now recognises the possibility of leaving multiple spouses (ie. One legal and one or more de-facto spouse).
• If deceased left a spouse and either no children or only children of that spouse and the deceased, the whole estate goes to the spouse;
• If there is more than one spouse but no children (say a legal spouse and also one or more de-facto spouse(s)) then they share the estate equally;
• If there is a spouse and children of another relationship, the spouse (or spouses) share the first $350,000 of the estate and half the balance. The children get the rest.
• If no surviving spouse but children then such children get the whole estate equally. If any children have died before the deceased but have left children of their own ( grandchildren) then the share passes down the line ie. to their children and if any of them have died, to their children etc.
• If no surviving children, grandchildren or spouse, then it passes to parents.
• If no parents then to brothers and sisters. Like children, if any of them have passed away before the deceased, their children take their share (nieces and nephews).
• If no brothers and sisters, then to grandparents.
• If no grandparents then to uncles and aunts and like brothers and sisters, their children (cousins) get the parents share if the parent died before the deceased.
• If no uncles and aunts (or children of any deceased uncle or aunt) then it goes to the state government.

If you are over 18 years, you can appoint one or more people to be your enduring guardian. At the time you appoint an enduring guardian, you must have the capacity to understand what you are doing.

• Any person who is old enough to give evidence in court; .
• can't be a beneficiary to the will or the spouse of a beneficiary (de facto spouse may be included in that category). If they do witness the will they can't get their share although the rest of the will, will not be affected.
• The task of the witness is to see the person making the will (Testator) sign the will and to then sign themselves. They don't have to know what is in the will. By signing they are effectively saying they were present and the Testator appeared to be signing of his own free will and appeared to understand that he was signing a will. The Testator can sign before the witness is present and then acknowledge his/her signature when the witness is present. The witness is entitled to ask questions of the Testator to be satisfied he understands.

If you are competent to make an enduring guardianship application but you are not able to sign the form, an eligible signer can sign for you. An eligible signer must be over 18 and cannot be the enduring guardian or a witness. You must be present when the eligible signer signs on your behalf.

A witness must be a NSW barrister, a NSW solicitor, a clerk of the Local Court, or an interstate legal practitioner. Every signature on the form must be witnessed. The different signatures can be witnessed by different people at different times and places. For example, your signature can be witnessed in NSW and the enduring guardian's signature can be witnessed in another state.

The person you appoint as your enduring guardian must be:

• at least 18 years old
• someone you trust to make decisions in your best interests.

The appointed enduring guardian cannot be a person who, at the time of appointment:

• provides medical treatment or care to you on a professional basis; or
• provides accommodation services or support services for daily living on a professional basis; or
• is a relative of one of the above.

• Any adult person can be the Executor (over 18 years).
• There is no limit on number but more than 2 might become unworkable. Common to appoint one with an alternate if the first can't or won't take on the task.
• must be a named or definite person
• The Supreme Court normally require the Executor resides within NSW or be able to give an address for service of documents in NSW.
• Usually you would want someone you can trust and who has some experience in dealing with assets. The duties may involve selling assets and making decisions as to the price and method of sale.
• A solicitor can be the executor either alone or with other executors. It is sometimes a good idea to appoint your solicitor with the other executors as a 'referee' in case of disputes.
• The NSW Trust & Guardian (formerly Public Trustee) or a private trustee company can be executor.
• a beneficiary can be the executor and it is common to appoint the person receiving the largest interest as executor.
• it is not a good idea to appoint a person who may have a conflict with the other beneficiaries.
• a person who is to receive a life interest should not be appointed as executor as the estate will continue until after they pass away.
• a person who may wish to purchase an asset from the estate may not be a good choice as he can't buy from himself without a specific clause in the will or the consent of all the other beneficiaries (who would all have to be adults) or court approval.

Anyone over 18 years can be your attorney. It should only be given to a person who can be completely trusted as they can do anything you can do financially such as sell or mortgage your house or operate on your bank account (unless there are limitations against this in the document). Of course, if they acted illegally by stealing your money, they could go to prison but that may not get you your money back.

• If you are putting money into a property but it is not wholly or partly registered in your name, then you are either lending or giving money to the family member.
• If you are receiving a pension, this may affect your pension as there are implications of lending or giving money away to family.
• If you are making a loan (and not an owner) then you need to have some written agreement that confirms it is a loan (and not a gift) and what is the position if you want your money back.

• Your will is your chance to say what you want to have done with your property when you die.
• It is a document that only comes alive when you die.
• It is only the last will that operates and there is no limit to how many wills you make.
• A will can always be revoked (cancelled) or changed at any time as long as you have capacity.
• Your will can also contain your wishes for your funeral and disposal of your body.

You are entitled to apply to the Supreme Court for a commission for you work as executor. But if you are also named as a beneficiary in the will the amount you receive will be presumed to be payment for your efforts and you will not be successful with a commission claim. If your efforts have not been very great, the Court may refuse to give you any commission. It is not common to apply for commission.

If you do not want to be an executor (prior to dealing with assets of the estate) you can renounce the executorship by signing a form called a 'renunciation'. We can then file it with the Probate Registry of the Supreme Court.

• If you have entered into an agreement with your family then you will have more certainty as to what you get back. You will have at least discussed the problem.
• The most common problem is that often the property has not increased in value by the amount that you have paid for your flat or extension. If you pay $100,000 for the extension, this does not mean the whole property has gone up in value by $100,000. In a given suburb there is a limit to how much any property will be worth, no matter how big or luxurious. If the property is to be sold to pay you back, who is going to take the loss? You will want to get your $100,000 (perhaps with interest) back but that might mean your family will not get as much for the rest of the house as they would have before you came along. If they get what their house was originally worth, you won't get back all your money. What is fair?
• On the other hand, if the property has gone up in value, who gets this increase. You might think you should because you consider it was your extension that increased the value. They might think they should because it is their property? What is fair?