Estate planning can indeed be challenging, involving tough conversations and addressing uncomfortable questions. However, the process is invaluable. It reduces uncertainty, eases the burden on your loved ones if something happens to you, and provides them with more time and space to grieve without additional stress.

Estate assets include things such as personal property which you solely own; including motor vehicles, jewellery, bank accounts, life insurance policies where the estate is the nominated beneficiary, partnerships, fixed trusts, properties owned as tenants in common and the like.

Non-estate assets include things that are in joint names or jointly owned (including a joint tenancy house, bank accounts, motor vehicles and the like), superannuation (which utilise binding death benefit nominations instead of Wills), assets in a discretionary family trust or company (subject to the terms of those entities), reversionary pensions or annuities, certain insurance policies where any proceeds are not paid to your executor or to the estate, and the like.

In Australia, if you die intestate (without a valid will), the distribution of your estate is governed by the intestacy laws of the state or territory where you lived at the time of your death (and in some cases, the state where the asset was held). Each jurisdiction has its own rules for how the estate will be divided. 

To understand the specific rules and ensure your wishes are honoured, contact us to book an appointment and discuss any particular or specific concerns.

Without a valid Will, and until the Court issues a Grant, most of the deceased’s assets remain frozen and cannot be accessed, meaning that they cannot be sold, transferred, or distributed. 

During this period, assets remain in their current condition and can continue to accrue debts (i.e. a house with mortgage payments, utility bills, insurance premiums and forgoing necessary repairs). This can further complicate administration and further affect the total estate for distribution.

Your Will does not cover incapacity situations (i.e. alzheimer's disease, dementia,  comas, absences, loss of limbs and the like). The Will takes effect only when you die, but what are your plans in the situations from now up to but not including death? 

You should say what you want to happen in situations and circumstances like:

1.  Who actually makes the call to say you are incapacitated (i.e. medical professional, family member etc.)

2. Who you want to make decisions on your behalf (i.e. partner, family member, friend etc.)

3. When the decision maker steps in (i.e. immediately, when a doctor declares you unfit etc.)

4. How long that person can act (i.e. indefinitely, until recovery, until a certain age etc.)

5. What kinds of care you would consent to or refuse (i.e. restrictive practices, dental, palliative, who looks after your pets, which facility is your preference)

 Without a proper document in place, you risk not getting the care you need when you need it, or potentially not having the authority that a care provider needs in order to provide care to you. Your financial commitments will continue, including resulting default and enforcement situations.

The simplest thing to do is make documents that ensure your commitments and health can be maintained if you are unable to do so yourself.

You can also apply to the state's guardianship division, Court or Tribunal to appoint someone, but this can be expensive and time-consuming without a guaranteed favourable outcome.

A Will made with a DIY Will kit can be legally valid, but only if that Will meet strict legal requirements. If not completed correctly, your Will may be deemed invalid or informal, resulting in your estate potentially being distributed according to intestacy laws rather than your wishes.

Do you know:

1. the extent, value and whereabouts of all of your assets?

2. understand who could make a claim on your estate?

3. if you have the capacity to make a document (including freedom from coercion)?

The main risk with DIY Wills is a lack of understanding about what the document does or how it will be used. This includes ambiguity, no tailored and catered legal advice specific to your needs, inadequate coverage of your situation and the potential for your Will to be contested.

DIY kits often do not cover complex situations or circumstances which leads to disputes and challenges. If the Will is declared to be invalid, it will be as if you had never made a Will (intestacy) and now you lose the protection you thought you had in place over your estate.

Using a DIY Will kit may not reflect your understanding of your assets, potential claims and how you have overcome any capacity issues.

Even if the person who made the DIY Will kit software is a bottomless wealth of knowledge, do you know what certain trigger words and phrases mean and how to ask about them (i.e. avoiding an ademption, rebutting the presumption of advancement, adequate provision and the like)?

Even if the DIY Will kit could cover a complex estate, there would be additional fees and hurdles in order to put the wording in that you need to cover a non-standard situation (i.e. life interests, granny flat arrangements, company interests and the like).

Whether a Will can be contested depends on many things. Different states or territories have different rules and laws regarding who can make a claim over an estate. A DIY Will kit may not address potential claims or recommend how to strengthen your Will against any claims.

DIY Will kits also generally only cover the document being made but not the need of a separate external document alongside a Will clarifying or explaining its terms. For example, the exclusion of a beneficiary and the reasoning should be put in a document and stored alongside the Will. 

Simply having a Will, and only having the Will by itself, is not an effective estate planning strategy.

DIY Will kits are not cheaper than going to a lawyer; not in the short or long term.

DIY Will kits may appear initially cheap, but then you are hit with up-sells, extras and necessary unavoidable add-ons. Once you do the final math, it would have been cheaper to simply have gone to a lawyer in the first place

Poorly drafted Wills also almost always create costly legal battles later.  Saving money now may not save you or your loved ones from the headache and stress of a contested estate.

The DIY Will kit makers can also say that you made the Will, therefore anything bad that happens is your fault and they are not responsible. Many kits are designed to protect the makers; not you.

Consulting with a Wills & Estates law firm, such as Ashby Estate Law, can help you avoid these risks and potentially protect your estate from complicated, lengthy and expensive legal battles.

In the likely chance that your DIY Will needs to be redrafted, you may need to create an entirely new Will.

Most DIY Will kits are 'pay-per-draft' and blame you for any mistakes, even if the software is inadequate or doesn't go far enough - this means you must start again, and pay again.

Not all consumer protection laws apply to products you make yourself, and so you may be held responsible for a faulty or inadequate DIY Will.

The Grant of Probate is the Court's way of recognising the validity of the Will and the legitimacy of the Executor in authorising them to administrate the deceased's estate. It is the Executor's role to ensure what goes where, but they must be authorised to do so.

Probate covers estate assets such as property, bank accounts, motor vehicles, mobile homes, boats, refundable accommodation deposits, bonds, shares, cryptocurrency, artwork, personal effects and other things owned solely by the deceased.

Some assets are not considered as estate assets and are distributed under the Will, thus they are not included in the Probate application. These assets may include:

1. Jointly owned assets (including property held as joint tenants and bank accounts)

2. Assets held in or by a family trust

3. Proceeds of life insurance

4. Superannuation

Their values are not factored by the Court in calculating the filing fee for an application for a Grant of Probate. You should still tell us about these types of assets, their values and details as we may need to assist in transferring those assets to the remaining or surviving joint asset holders.

Safety and security. Financial crimes and fraud are common and have very far reaching impacts on everyone's lives, and you should have trust and confidence in those who hold your things.

Getting financial entities and asset holders to release assets should be tedious and difficult. We want to know that our assets are in safe hands and will not be released to just anyone who asks. This is also why each holder has their own rules, forms, processes and procedures.

You will need the deceased's original death certificate, their last Will and a list of assets and debts.

The original death certificate is usually issued within 28 days of the death being registered (often by a funeral director, declaring doctor or other party that would normally register deaths). If the original death certificate is lost or damaged, a new one can be purchased from the governing authority in each state that deals with births, deaths and marriages.

If you do not have the last Will of the deceased (or only an older one), we can conduct searches including with people the deceased knew (friends, family etc.), the public trustee, businesses near where the deceased lived or conducted business (including local law firms, banks, financial advisors, accountants etc.), and anyone else that might have or know of the deceased's wishes.

If there is no valid Will or the deceased died without making one (called 'dying intestate'), you will instead need to apply for a Grant of Letters of Administration.

There are two fixed costs with getting a Grant of Probate. The first costs are the filing fees with the Court, and the other are the Scale of Fees which lawyers charge for their involvement.

Both these fees scale with the size of the estate (i.e. the bigger the estate the higher the fees) but are at fixed increments to prevent price gouging, taking advantage or otherwise covers only the reasonable costs of involvement so that more of the estate goes to the intended beneficiaries. 

Each state and territory sets their own fees (both for the Court and for professional involvement) and they usually increase at the start of each financial year.

Each state varies in their application times, limits, processes and procedures to allow and authorise the Grant of Probate to be used.

In NSW, it may take between 6-12 months for the Grant of Probate to be issued:

1. You must file a notice of intention to apply for a Grant of Probate 14 days prior to filing

2. You should make an application and file an application notice within the first 6 months of the date of death, or otherwise provide an explanation for the delay

3. The Court may then take 6-12 months to process this application depending on the size and complexity of the estate and whether more information is needed (which is usually referred to as a 'requisition')

4. Once the Grant of Probate is approved, a notice of intended distribution should be filed advising that in 30 days the estate will be distributed

5. By this point, 6 months should have passed and any claims over the estate will hopefully have been made and filed. The estate should not be distributed within the first 6 months following the death of the deceased in order to allow sufficient time for any such claims to be made

There are other factors that can increase the timeframe of a Grant being issued and you should always check and ensure that all relevant and applicable rules and laws have been complied with.

Without a Will, the Court has to figure out what the deceased's wishes were other than by a formal document. A lot of scrutiny, care and attention is given to applications for Letters of Administration, and all claims over the estate are given equal footing and weight.

The Court is much tougher and stricter on the types and contents of applications; since, if the deceased knew what they wanted to happen with their estate, a Will ought to have been made.

Like Probate, Letters of Administration covers estate assets such as property, bank accounts, motor vehicles, mobile homes, boats, refundable accommodation deposits, bonds, shares, cryptocurrency, artwork, personal effects and other things owned solely by the deceased.

Some assets are not considered as estate assets (such as jointly owned assets, family trusts, life insurance, superannuation etc.), but these may need to be included in the application for a Grant of Letters of Administration due to the intestate nature of the estate.

This means that non-estate asset values may need to be factored by the Court in calculating the filing fee; making the Grant of Letters of Administration more expensive to apply for than that of a Grant of Probate. On top of this, there are additional fees in professional involvement for helping to transfer those assets to the remaining or surviving joint asset holders.

Safety and security. Financial crimes and fraud, particularly with vulnerable estates, are common and have very far reaching impacts on everyone's lives.

Every claim over the estate is given equal weight therefore anyone can make a claim, and each claim will tie up the estate until resolved (usually outside of Court by settlement) meaning parts of the estate do not go where or to whom they should.

Getting financial entities and asset holders to release assets is already tedious and difficult enough without the added issues that a vulnerable estate brings. This translates to more time and cost involved with administrating the estate, and most asset holders will not speak to anyone except a legal professional assisting with the estate.

In addition to the original death certificate and asset/debt lists, you will also need to produce many additional documents to satisfy the Court that all attempts have been made to ascertain the deceased's intentions and deal with all eligible claims over the estate. This may include:

1. the deceased's original birth certificate

2. the birth and death certificates of anyone in the deceased's immediate families

3. statutory declarations, affidavits and statements from any persons of whom are eligible to make a claim but are not doing so and providing their reasoning and consent as to why

4. conducting searches including with people the deceased knew (i.e. banks, financial advisors, accountants etc.), the public trustee, law firms and businesses near where the deceased lived or conducted business, and all other possible ways in which to locate the deceased's last testamentary instructions or eligible beneficiaries

5. conducting national property ownership searches and other checks to figure out what the deceased owned and where and in what names they are held

6. any and all requests or directions from the Court as occasioned 

This evidence must be provided with the application for a Grant of Letters of Administration, and any likely subsequent requisitions, in order to show genuine efforts in locating testamentary instructions of the deceased and the nature or position of the estate.

Like Probate, there are two fixed costs with getting a Grant of Letters of Administration being the filing fees with the Court and the Scale of Fees.

Both these fees scale with the size of the estate (the bigger the estate the higher the fees) but keep in mind that many non-estate assets must be factored into an application for a Grant of Letters of Administration due to the vulnerable nature of the estate; meaning the cost for the Grant will scale up due to the inclusion of the other assets that would not be included in an application for a Grant of Probate.

Also, claims over the estate must be dealt with before an application can proceed, which means significant time and cost can occur while the estate is tied up and continues to accrue debts. 

Other costs not covered by the Scale of Fees can include but is not limited to:

1. sorting through estate papers and items

2. obtaining valuations and appraisals of assets or debts

3. locating and searching for beneficiaries

4. ascertaining whether certain assets form part of the estate (i.e. considering relationships, superannuation, insurances, etc.)

5. advising on the rights of other parties to challenge the estate

6. dealing with any dispute between executors, including conflicting instructions

7. corresponding with other parties or their representatives about possible or threatened claims or challenges (whether or not proceedings commence)

8. advising on complex questions on interpretation of any testamentary documents

9. advising on questions of rectification, capacity, duress, undue influence, forgery and other potential or hypothetical nullity events

10. advising on renunciation or reservations of right to apply

11. overseeing transmission applications, transfers and realisation of assets

12. conducting enquiries and research to ascertain the existence or whereabouts of assets

13. real estate dealings and conveyancing

14. any other matter that does not form the scope of the fixed fee under the applicable Schedule

If you are administrating an intestate estate, you should seek help from a legal professional.

Each state varies in their application times, limits, processes and procedures to allow and authorise the Grant of Letters of Administration to be used. This is particularly so in this instance as the Court must be satisfied that the deceased's assets are going where they ought to.

Given the vulnerable nature of the estate and how many different unknowable factors can cause delays, it could take up to 12 or more months for the Grant of Letters of Administration to be issued, but nevertheless follow similar processes and procedures as Probate applications:

1. You must file a notice of intention to apply for a Grant of Letters of Administration 14 days prior to filing

2. You should make an application and file an application notice within the first 6 months of the date of death, or otherwise provide an explanation for the delay

3. The Court may then take 12 or more months to process this application depending on the size and complexity of the estate and whether more information is needed (which is usually referred to as a 'requisition')

4. Once the Grant of Letters of Administration is approved, a notice of intended distribution should be filed advising that in 30 days the estate will be distributed

5. By this point, 12 months should have passed and any claims over the estate will hopefully have been made and filed. The estate should not be distributed within the first 12 months following the death of someone who dies intestate in order to allow sufficient time for any such claims to be made and deliver certainty on the estate administration

There are other factors that can increase the timeframe of a Grant being issued (particularly with intestate estates) and you should always check and ensure that all relevant and applicable rules and laws have been complied with. There are many additional issues that Letters of Administration applications face that Probate applications do not, so ensure you get legal help.