Christie Gardiner

In this instance you will die 'intestate' and your estate assets will be distributed in accordance with the laws of intestacy.

In South Australia the manner of intestate distribution is set out under s72G of the Administration and Probate Act 1919 and related provisions. As an example of the way these provisions may operate:

• if you are survived by spouse or domestic partner but no children, your spouse or domestic partner will receive the whole of your intestate estate;
• if you are survived by a spouse or domestic partner and children, your spouse is entitled to $100,000 and one-half of the balance of the estate and your children are entitled to share equally in the remaining one-half of the balance of the estate;
• if a child of yours does not survive you, leaving children of their own surviving you, then your grandchildren will receive their deceased parent's share;
• if you are not survived by a spouse or domestic partner or children, your estate will be distributed among your parents in the first instance, then your brothers and sisters and so on.

Similar provisions exist in all other States and Territories but often with considerable variation.

It is also important to keep in mind that certain assets, such as superannuation, life insurance policies and property you own as 'joint tenants' with another, are not automatically controlled by your will. Additional steps must be taken to ensure these are disposed of in accordance with your wishes, as a will is just one part of an effective estate plan.

Because instate provisions may not align with your own testamentary wishes, it is important to invest in an estate plan that not only achieves your wishes but preferably minimizes taxation and maximizes asset protection.

Without knowing the specifics of your case, there may be options available to you including applying for a further visa or appealing the decision to cancel your former visa.

Are you sure your former visa was called a subclass 501? '501' typically refers to a power that the Minister holds to refuse to issue or to cancel a visa on the basis that the applicant or visa holder fails to meet the character test requirements.

Please feel free to contact me to obtain further specific information.

To die intestate means that the deceased:

(a) did not leave a will; or

(b) left a will, but the will itself did not effectively dispose of all of the assets of the estate.

The consequence being that the residuary estate (i.e. whatever remains undisposed of) will be distributed in accordance with a scheme of distribution set out under the relevant legislation: for instance, see Part 3A of the Administration and Probate Act 1919. Similar provisions exist in all other Australian States and Territories.

It may be possible to apply for a subclass 457 visa onshore, but this will depend on whether any specific conditions (such as 'no further stay') attached to your student visa and whether you meet the new visa's criteria. As a registered migration agent I would be happy to provide you with more information specific to your circumstances and needs.

This entirely depends on whether the will itself provides for a substitute beneficiary. If the will does not provide for a substitute beneficiary, the property will pass to the surviving residuary beneficiaries specified under the will. If there are no surviving residuary beneficiaries, the property will typically pass in accordance with applicable intestate provisions. You should also keep in mind that even if someone has been left without a benefit from a deceased estate, they may still be entitled to apply for a family provision order by the Supreme Court (effectively varying the distribution of the estate). The overall distribution of an estate is subject to a range of factors which can vary greatly depending on the nature and circumstances of the estate and the interested parties relationship to the deceased, so it is important to obtain professional advice in respect of your specific needs.

So that I can offer you some information, can you please clarify the following:

1. Was the property in question gifted to someone (your uncle?) in a will?

2. You mentioned that it happened 30 years ago, by this do you mean the will was changed 30 years ago, or the person passed away 30 years ago?

3. When did the person pass away?

4. When did your mum first become aware of this situation?

5. What evidence does your mum have of the deceased's mental illness and its impact on his will?

Thank you.

You cannot apply for a grant of Probate if there is no will, but you can and may need to apply for a grant of Letters of Administration instead.

This type of grant is appropriate when someone has passed away without leaving a valid will. It will mean that the individual has died intestate and their estate will be distributed according to a pre-determined formula among a limited number of beneficiaries. For NSW the interests of beneficiaries of intestate estates are set out in Chapter 4 of the Succession Act (NSW) 2006.

It is important to confirm whether or not a grant is required at all, as this will cause unnecessary expense. Whether a grant is required depends on the size of the estate and the nature of the deceased's. If the estate contains real property which the deceased owned either as tenants in common or absolutely, then a grant is required. If the asset holders require a grant, then one will be required. Financial institutions often require a grant as evidence of a persons authority to deal with the property. The appropriate State or Territory in which to apply for the grant is the jurisdiction where the deceased lived. If they also happened to open real property in another State or Territory to where they lived, then an application for a Reseal of the original grant must also be obtained from that jurisdiction to lawfully deal with that property.

Applications for grants of Letters of Administration are made by interested persons - typically a surviving spouse or child. For NSW applicants, the Supreme Court's website contains information on how to apply for this grant (here). The forms needed to apply for the grant are found by following this link. Applications must be made within six months of the date of death.

A lawyer is not needed to apply for a grant on your behalf, particularly if the estate assets are not complex. Engaging a lawyer to obtain a grant of representation cost several thousands of dollars and so I always encourage people to undertake this process themselves where possible. The cost of obtaining the grant is considered an 'estate expense' and applicants are entitled to be reimbursed from the estate once the assets have been collected.

A filing fee of $1,114.00 must accompany an application for a grant of representation (either Probate or Letters of Administration) in the Supreme Court of South Australia. Each State and Territory will charge differently and for jurisdictions other then SA you should consult the relevant Probate section Supreme Court's website.

In SA, if the deceased died prior to 26 June 2014 an administration bond may also be required.

To my knowledge the Probate Registry of SA accepts cash, cheque, money order, credit card and EFTPOS. On the advice of the Registrar, cheques and money orders may be made out to “Probate Registry”. However, for the sake of keeping a clear record, I recommend that you make cheques and money orders out in favour of the “Supreme Court of South Australia Probate Registry” or in the very least “South Australia Probate Registry”. A receipt will be generated for the estate file.

Fees and overall costs will also depend on whether you are obtaining a grant in common form (which most the most common type and is an order made ‘on the papers’), or in solemn form (where there are contentious issues and a hearing is required).

Depending on the complexity of the estate, it is certainly possible and preferable to apply for a grant of Probate yourself without engaging a lawyer. The court forms and additional information that you will need to complete this process can be obtained via the Supreme Court of South Australia’s website (http://www.courts.sa.gov.au/RepresentYourself/ProbateRegistry/Pages/default.aspx). Other online resources, such as the Legal Services Commission of South Australia (http://www.lawhandbook.sa.gov.au/ch36.php) may also be of assistance. The Probate Registry cannot advise you on how to fill out court forms in a substantive sense, however you can ask them procedural questions. Incomplete or inadequate forms will require amendment and if this is the case, the Registrar will return all documents to the nominated recipient, together with a list of requisitions (questions) to be addressed before re-filing. The Court will not charge additional fees if your application is requisitioned. If time is a critical factor in your application it may be prudent to obtain a lawyer to assist you, as grants may take several weeks or even months to issue.

If a lawyer is engaged to assist you in obtaining a grant of Probate or Letters of Administration, their fees will depend on whether they charge you on an hourly basis (time billing) or as a fixed fee. Most lawyers will reveal how much they will charge you over the phone with a general condition that “this may increase if circumstances change”. I recommend that you seek out a lawyer who offers fixed fee services to avoid any surprises.

Please keep in mind that it is not always necessary to obtain a grant in order to administer an estate. This will depend on the nature and extent of the estate assets. For instance, if the estate includes real property (real estate) a grant will always be required in order to transfer this property into the name of a beneficiary or into the name of the legal personal representative (e.g. executor) for sale. If the estate is of low value (in the order of $20,000 or less), a grant is unlikely to be required.

I hope that this response is beneficial.

Kind regards,

Christie

Yes, Will-kits are lawful.However, the enforceability of a Will-kit (or any Will) depends on whether or not it has been prepared in accordance with various formal witnessing requirements for Wills. A Will only comes into effect on your death, at which point it's enforceability will be assessed.

What are the formal requirements of valid Wills?

The requirements for witnessing Wills in SA are set out under the Wills Act 1936 (SA)and these are broadly similar to all of the other Australian jurisdictions and include the following:

• the Will-maker must have testamentarycapacity to make a Will, including that they are over 18 years of age and of sound mind, memory and understanding; and
• the Will-maker must have theintentionthat the document they are signing constitute their Will - accordingly there must be a document (defined broadly) that expresses these intentions; and
• the Will must be signed by the Will-maker (or at the Will-maker's direction if he or she is unable to witnesses the document); and
• the Will-maker's signature must be witnessed by at least two witnesses present at the same time (the witnesses are not required to be present at the same time, though practically they should be and this is best practice).
  

Are Will-kits worth the risk?

No. The Supreme Court does have jurisdiction to look beyond a failure to meet most of the above requirements in a range of circumstances - excluding those relating to capacity (as a statutory 'Court ordered' Will should be obtained for this purpose not a Will-kit). However seeking the courts 'rectification' or 'construction' of a Will that fails to meet these requirements or conceals the Will-maker's intentions will come at great expense to your beneficiaries.

Will-kits are an alluring economic option for many, however even the most straight forward of family and property arrangements require a level of qualified advice in order to achieve your intended outcome.I have heard many refer to will-kits as creating a 'false economy', quite simply on the basis that they are initially very cheap - however, if they are not correctly prepared, they will produce significant costs and confusion for your estate and your beneficiaries, perhaps requiring the intervention of the Court to put right.

Do they achieve the best outcome?

Rarely. In terms of the outcome that these documents achieve for your beneficiaries, they do little more than appoint someone to manage your affairs and name the beneficiaries of your property. Will-kits offer no tax effectiveness or asset protection, as compared with tailored Wills that are shaped to meet your families needs, both now and long into the future. You are also likely to own a range of non-estate assets (such as superannuation, life insurance or family trusts) and these assets require the implementation of separate mechanisms altogether.

What other options are available?

A specialist estate planner should always be contacted. Particularly as most lawyers will now offer complementary estate planning consultations with no obligation to engage the firms services. Many lawyers are also more than happy to have a preliminary chat over the phone. Will drafting is increasingly a specialist area of law. Unfortunately I have seen far too many Wills that have been prepared by qualified solicitors, but that fall far short of the mark.

I recommend that you view your estate plan as an investment for your family and act accordingly.