This year Aitken Lawyers defined who we are and what we want to be. We came up with one core vision and value – to provide exceptional client service. We have been determined to provide you with smarter, better, faster service and this can only get better in 2019 with our merger with Russell Kennedy. Russell Kennedy offers a wealth of resources, a wealth of experience and a portfolio of legal services that complements our own. Together, we will continue to put you first.
Another vision and value of ours is getting involved in the community. Many of our lawyers volunteer at local legal centres, providing legal services to demographics who would otherwise have very limited access to the legal system. This year we would like to congratulate Amy Jenkins and Corey Gauci, of our Family Law Team, who both clocked well over 100 hours of pro bono time at Marrickville Legal Centre, Redfern Legal Centre and Inner-City Legal Centre. Amy also donated her time to speak at four women’s refuges and advise sex workers against violence. By way of comparison, the National Pro Bono Target is 35 hours a year, so Amy and Corey have made a tremendous effort!
We are also proud to have been able to support the farmers this year. Many of our clients work lands in rural New South Wales and we are extremely grateful for the donations we received from clients, staff and other businesses in our building. We raised $2200 that was put towards fuel vouchers for farmers in the Glen Innes, Inverell, Guyra, Gunnedah and Griffith communities. The fuel vouchers were also raffled off at the Guyra Men’s Health Night, which supported mental health in the Guyra, Inverell and Glen Innes communities.
We have also supported the Manly Warringah Women’s Resource Centre in Dee Why, which provides shelter and assistance to women and families fleeing domestic violence. Throughout the year, the staff have collected essential items and new toys for the children. We recently dropped off a trolley of toys for Christmas to give Santa a little bit of help!
We are really looking forward to working with you in 2019! It is going to be a year of change, but change for the better. We are excited about our merger with Russell Kennedy and what it will offer you, our clients.
We wish you and your family a happy New Year!
So your loved one or friend has passed away and you have just found out that you are appointed their executor. You have no idea what that means and what the role entails. Here is what you need to know about being an executor of an estate.
1.Ordinarily, an executor of an estate must be appointed by the willmaker under their Will. A person appointed as an executor can renounce their appointment before the below process is started and undertaking any executorial duties.
2.As there are no property rights in the willmaker’s body, the executor has a “duty of burial”. Practically speaking, this means a right to possession of the deceased willmaker’s body and a duty to arrange the funeral. In preparation for the funeral, the undertaker/funeral director will register the death and a death certificate will be issued (usually a couple of weeks later).
3.With the last Will of the willmaker and death certificate in hand, an executor of an estate can apply to the Supreme Court of NSW for a grant of probate. A grant of probate ratifies the willmaker’s appointment of the executor under their Will. Preparing the application for the grant of probate involves a number of court documents and an inventory of all the assets and liabilities of the willmaker. This will involve a number of investigations by the executor into the assets and liabilities of the willmaker. Some of these assets may need protection (for example, collecting valuables, insuring property, dealing with investments, etc). For this reason, it is not uncommon for the executor to seek the assistance of a legal professional to ensure the documents are prepared correctly and the estate is properly administered. Executors have a duty to get in the assets of the estate and distribute the assets to the persons entitled. An executor of an estate is a ‘trustee role’, meaning that an executor has strict obligations and duties to fulfil.
4.During this time, an executor of an estate should be alert to the immediate needs of the willmaker’s family. For example, does the family have an alternate source of income and/or access to sufficient funds? Ordinarily, a bank account in the willmaker’s sole name will be frozen until a grant of probate has been obtained. However, a ”joint” bank account passes to the surviving joint bank account holder(s) by operation of law (i.e not the deceased’s Will), so there may, in fact, be funds available. Also, in our experience, where the deceased willmaker had a bank account in their own name, most financial institutions will allow for a funeral invoice in the account holder’s name to be paid for upon production of the funeral invoice (thereby effectively ‘unfreezing’ the account for this particular transaction).
5.Once a grant of probate has been obtained, the executor can then administer the willmaker’s estate in accordance with their Will. This will, firstly, involve repaying all of the debts and liabilities of the willmaker. This may also require assets to be ‘realised’ to do so. It is important for the executor to keep in mind particular gifts in the Will, and also potential capital gains tax implications of these. Thereafter, the surplus of the willmaker’s estate can be distributed to the beneficiaries in accordance with the Will. Distribution of the assets may involve the preparation and registration of a number of documents that are unique to different types of assets (e.g. land, shares, etc).
6.Following the willmaker’s Will may require an executor of an estate to have a further “caretaking role”. For example, an executor may be appointed the trustee of a life interest or trust, which is to be managed and administered on behalf of a specific beneficiary. This role may continue beyond administration of the willmaker’s estate.
7.The executor is also be required to lodge tax returns on behalf of the willmaker and the estate, unless insufficient income is earned.
8.If the executor owned assets located outside of New South Wales, then it may be necessary to apply to the Court where the asset is located. This is called obtaining a “re-seal” of the grant of probate. Again, this may require legal documents to be prepared and the assistance of a legal professional. However, assets in that location will likely not otherwise be able to be dealt with.
9.If a person makes a claim for provision against the Willmaker’s estate, or the Willmaker was engaged in legal proceedings at the time of their death (for example, family law proceedings or a dispute), then an executor of an estate may need to be engaged in legal proceedings, which may cause the estate to take longer than anticipated to distribute to the beneficiaries.
If you have been appointed an executor of an estate please do not hesitate to give our Probate team a call on 02 8987 0000.
Staff in the Spotlight – Lauren Maddalena
Lauren is our resident paralegal in the Family Law Team. We often get asked – what exactly is a paralegal? Paralegals are a lot like paramedics. Paramedics have a wealth of medical knowledge and can administer certain types of medicine without the need for a doctor. Good paralegals can perform cost-efficient work on matters without the need for a solicitor. Great paralegals have a wealth of legal knowledge and can operate like junior solicitors (without the law degree) and even run their own matters. Lauren is a great paralegal and often assists with running matters where we are appointed as an Independent Children’s Lawyer.
Lauren has completed a diploma in Business Legal Services and has over 11 years of experience in the legal industry as a secretary and paralegal, working primarily in litigation based areas of law. You may think that makes her a dogged character but it is rather the opposite. This cross stitching, sausage dog loving, Betty Crocker is one of the bubbliest in the office and often brings in cupcakes for the staff.
Nothing warms the cockles of her heart quite like the relationships she forms with her clients (except perhaps for one of her cake creations). She finds great satisfaction in advocating for children and refocusing family law matters on what is in the child’s best interest and helping a family move on from the ordeal of a divorce and build towards a new future.
Lauren has travelled all around the world but her favourite countries remain Kenya and South Africa. Nothing quite compares to an “out of Africa” experience and she looks forward to going back.
Choosing the right executor isn’t necessarily difficult but in this blog we’ve put together some tips to make it easier.
An executor is a person appointed under a Will to administer the willmaker’s estate. The willmaker’s appointment is ratified by a grant of probate from the Supreme Court. The grant of probate gives the executor power to deal with the assets and liabilities of the deceased estate.
The general duties of an executor range from organising the funeral, collecting the assets of the deceased’s estate, paying all liabilities and debts of the deceased and distributing the balance to the beneficiaries set out under the deceased’s Will. The executor has 12 months to do this but more complex estates can take longer. The executor’s role finishes when all the liabilities have been paid and the balance distributed to all of the beneficiaries in accordance with the Will. The executor’s role can sometimes change to a “trustee” where they are required to hold assets on trust for a beneficiary, especially a young or disabled beneficiary.
Here are some elements to consider:
1.Fundamentally, the role is a position of trust.
2.The willmaker should weigh up the personal circumstances of persons he or she may appoint. For example:
Age – it may not always be prudent to appoint someone older than the willmaker or near retirement, particularly if an alternate is not appointed.
Location – the role will require documents to be signed (sometimes in the presence of an authorised witness like a solicitor of justice of the peace) and decisions to be made. It can be made more difficult where an executor resides outside of Australia or, in fact, outside the area where the deceased’s physical assets are mainly located.
Health – the role can have its demands, especially if there is a dispute, claim or assets that require constant ongoing attention.
Time – the more complex estates can be extremely time consuming at times, although appointment of more than one executor can ameliorate this.
3.It is not uncommon for willmakers to appoint more than one executor who bring different skillsets and more than one point of view to the table. They can also “share the load”. For example:
It can sometimes be an arduous task investigating the assets and liabilities of the deceased, so it can be cost-efficient and advantageous to appoint someone who has some knowledge of those assets and liabilities.
Most executors will seek the assistance of a legal professional in applying for a grant of probate and administering the deceased estate. Whilst a legal professional is a valuable and active tour guide to walk executors through the legal process, it helps if an executor has a “business-like” attitude that respects the formalities of the process, such as completing tasks in a timely and efficient manner and preparing and completing tax returns.
Appointing someone independent can have its benefits. Whilst they may have a useful skillset, they may also act as a “buffer” between family members also acting as executors, and the beneficiaries.
The relationship of the executors can often be overlooked. It is important to consider whether they have the capacity to work together and equally, to resolve disagreements.
More complex estates or situations may warrant more people at the table, whilst more simple estates may be adequately administered with only one executor.
4.The role may involve some difficult decisions. Willmaker’s may balance up considerations such as whether a potential executor is easily influenced by another and/or is prepared to act and “stand up and be counted” under difficult circumstances.
5.If a willmaker foresees that his or her estate may be contested, it may be appropriate to appoint an executor with a certain amount of resilience and readiness towards defending the Will in court.
6.Whilst there is no requirement for a willmaker to compensate an executor for performing the role, a willmaker may leave a cash legacy to an executor in lieu of performance (particularly, if they are not otherwise a beneficiary). A willmaker may also empower a professional executor to charge for his or her professional services.
Any executor may also apply to the Court for a commission for their “pains and trouble” of performing the role. In awarding a rate of commission, the Court looks at a number of factors but the higher rates are generally awarded to more complex estates.
For more information or particular advice on choosing the right executor, please do not hesitate to contact our Estate Planning team on 02 8987 0000.
This article contains general information and is prepared without taking into account your specific objectives. Before acting on the contents, you should obtain specific legal advice in relation to your own circumstances.
Many of you will have had the pleasure of speaking with Mel on the phone or being greeted by her friendly face at the office. But did you know, beneath her fashionable exterior, Mel has a fascination with the criminal mind. No doubt the product of a love of reading, Mel is currently studying criminology and working towards being a forensic pathologist.
While there is no real need for hair samples, fingerprints or chalk drawings in our office, Mel finds the law an interesting junction between science and humanity. We hope to see her don the scrubs in the forensic lab in the next couple of years.
In the meantime, our video-loving, motor bike riding, one-time scorpion owning, science geek is learning Japanese. Feel free to help her practice when asking for your call to be redirected!
“O denwa arigatōgozaimasu. Dewa, mata ne.” – Thank you for calling. See you next time.