WILL AND PROBATE
What is probate?
Probate is a court's order that the deceased's last valid will has legally been proved so that an executor in the will can collect and distribute the estate pursuant to the terms of the will.
Probate or letters of administration (on intestacy) is not always necessary if an estate is very small and uncomplicated or all assets are held as joint tenancies (i.e., in that case, title passes by survivorship).
The grant of probate can be revoked in some circumstances.
Supreme Court Filing Fee as at 1 July 2014
| Value of the estate | Fee |
| Under $100,000 | Nil |
| $100,001-$250,000 | $685 |
| $250,001-$500,000 | $949 |
| $500,001-$1,000,000 | $1,424 |
| $1,000,001-$2,000,000 | $1,899 |
| $2,000,001-$5,000,000 | $3,164 |
| more than $5,000,000 | $5,274 |
Fees may be paid in cash, by EFTPOS, credit card or by money order made out to the Supreme Court. Personal cheques are not accepted.
Will and Power of Attorney
| Item | Legal Fee |
| Single will | $250 |
| Single Enduring Power of Attorney | $150 |
| Will and Enduring Power of Attorney | $380 |
| Couple wills | $480 |
| Couple Enduring Power of Attorney | $280 |
Testamentary Trusts
It can be created by your will and comes into effect after your death. Generally, the trustee has full discretion about distributions to the beneficiaries.
It can also be established within three years of your death and the assets used to establish the trust cannot exceed the amount which the beneficiary would have received under the law, if you died without a will.
It can continue for a period of eighty years but assets in the trust must eventually be distributed before or by the time.
Contrary to superannuation funds, testamentary trust assets can be removed from the trust for purposed of borrowing or security and there is no requirement such as a spread of investments or audited accounts.
One of the benefits of a testamentary trust is protection from creditors or ex-spouses as the trustee owns the assets the benefit from which passes to beneficiaries.
In addition, in the event of a bankruptcy, the beneficiary's inheritance from a testamentary trust will not form part of his/her estate for bankruptcy purposes.
Any income, capital gains and franked dividends can be distributed among all your family beneficiaries each year whose income taxes can be proportioned and minimised.
However, if your estate does not have sufficient assets, you will be burdensome for ongoing administrative costs for maintenance of your trust.
Estate Planning
If you want to make sure that your estate is well preserved during your life time and distributed to your beneficiaries after your death, it is then required to set up a good estate plan through enduring powers of attorney, wills and/or testamentary trusts etc.
Reference
- Succession Act 2006 (NSW)
- Probate & Administration Act 1898 (NSW)
- NST Trustee and Guardian Act 2009 (NSW)
- Powers of Attorney Act 2003 (NSW)
- Powers of Attorney Regulation 2011 (NSW)
- Probate FAQs (NSW Supreme Court)
- Online Probate notices- NSW Online Registry
- NSW Trustee and Guardian
- NSW Registry of Births, Deaths and Marriages
- Aboriginal Wills Handbook
Intestacy Laws (NSW)
Recent survey shows more than half the adults in NSW do not have a will. In that case, Intestacy laws applies. To reflect the above, on 1 March 2010, NSW Succession Act 2006 came into effect to produce the same result as would have occurred if the deceased made a will.
The Act provides a specific order of distribution of an estate's assets as follows:
| Spouse alone | who married before an intestate's death or formed a domestic partnership (via a relationship registration/de facto (2 years continuous relationship)/ have a baby in the relationship) | This spouse takes the whole of the estate |
| Spouse + issue of the spouse | Same as above | Same as above |
| Spouse + not the issue of the spouse | Same as above | The spouse takes the following:
The issue takes 1/2 of the remainder of the intestate's estate |
| No spouse + issue |
|
in equal shares |
| Bona vacantia(vacant goods) | State (However, the State at the request of a written application may waive its entitlement to:
|
the whole of the estate |
Notes:
* A beneficiary must survive the intestate by at least 30 days in order to receive a benefit.
* Throughout a beneficiary nomination on the intestate's life insurance, its proceeds can transfer directly to the beneficiate on death of the intestate.