Estates and Estate Planning

Q. Can someone challenge my will after I die?

Under the Succession Act “eligible persons” can apply to the court to challenge your will after you die. Eligible persons include spouses (including de facto and former spouses), children and dependants. The court considers a number of issues in determining whether they are entitled to a benefit including whether you had a moral obligation to provide for the applicant and failed to do so in circumstances where they had a financial need.

Q. What happens if I die without a will?

Your estate will be divided pursuant to a statutory scheme between your next of kin, and not in accordance with your own preferences. In addition, the cost of finalising your estate will be much higher than would have been the case if you had a will.

Q. What is probate?

Probate is an order of the Supreme Court which authorises your executor to finalise your estate in accordance with your will.

Q. What happens to my superannuation on my death?

The trustee of your superannuation fund will pay your superannuation death benefit to the person you have directed, provided that person is within the categories of people to whom the trustee is authorised to pay. Otherwise the trustee will determine who to pay your superannuation to. They may pay your superannuation to your estate for division in accordance with your will.

Q. Will I have to pay capital gains tax on the sale of the deceased person’s property?

Where the sale takes place within 12 months of the death and the property was the deceased’s principal place of residence, no CGT would be payable.

Q. How do I arrange my will to protect my child with an intellectual disability?

You can include in your will provisions which appoint a person to manage your estate after your death for the benefit of a disabled child. That person would be able to invest and distribute money from your estate in a way that ensures the best interests of your child are protected. Your will would be flexible enough to ensure that your child’s Centrelink entitlements are not prejudiced and also to ensure that your child does not face any unexpected tax liability.

Q. Who will look after my finances if I become incapacitated?

If you have a Power of Attorney, the person/s appointed under your Power of Attorney will have the power to look after your finances. If you do not have a Power of Attorney then someone will need to apply to the Guardianship Division of the NSW Civil & Administrative Tribunal to be appointed. The Guardianship Division may decide that person is not appropriate and appoint someone else or the NSW Trustee & Guardian. The person who is left with control of your financial affairs may not be the person you would choose.

Q. I don’t want to be kept alive on life support if I have an accident. What should I do?

You can appoint a Guardian under an Enduring Guardianship. An Enduring Guardianship authorises one or more people to make decisions for you in regard to your health, where you live and what other types of personal services you should receive if you cannot make these decisions yourself. If you do not have an Enduring Guardianship in place and you become incapacitated the Guardianship Division may appoint someone who you would not choose yourself and/or the Public Guardian.