Wills and estates in NSW are mainly governed by the Succession Act 2006 (NSW). Danny Lagopodis practises in estates, probate and elder law, and brings a background in commerce and accountancy to estates involving businesses, investments or family trusts.
Your planning documents
Will
Says who receives your estate, who will administer it (your executor) and, if you have young children, who you would like to be their guardian. A will must be in writing and signed by you in the presence of two witnesses who are present at the same time.
Enduring power of attorney
Appoints someone you trust to manage your financial and legal affairs, and continues if you lose capacity. It is made under the Powers of Attorney Act 2003 (NSW) and must be witnessed by a prescribed witness, such as a solicitor.
Enduring guardian
Appoints someone to make health, medical and lifestyle decisions for you if you cannot make them yourself. It is made under the Guardianship Act 1987 (NSW).
When to review your will
Review your will whenever your circumstances change. In NSW, marriage generally revokes an existing will unless the will was made in contemplation of that marriage. Divorce generally revokes gifts to, and appointments of, your former spouse. Separation alone does not. New children or grandchildren, a new relationship, buying or selling a business, or the death of a beneficiary or executor are all reasons to update your will.
Elder law
Older clients and their families often need advice on more than a will: moving into aged care, family arrangements about the home, gifts to children, and protecting an older person from financial abuse. We advise older clients directly and make sure the instructions are their own.
After a death: probate and administration
- Find the will. We help locate the original will and identify the executor.
- Notice of intended application. Before applying for probate, the executor must publish a notice on the NSW Online Registry at least 14 days before filing.
- Apply to the Supreme Court. We prepare the application for probate or, where there is no will, for letters of administration. An application made more than six months after the death must explain the delay.
- Collect and pay. Once the grant is made, the executor collects the assets, pays debts and expenses, and deals with tax.
- Distribute. The estate is distributed to the beneficiaries, usually after waiting long enough for any family provision claim to be made.
Family provision claims
If a will does not make adequate provision for someone the deceased should have provided for, that person may be able to apply to the Supreme Court for provision from the estate. Eligible people include a spouse or de facto partner, a child, a former spouse, and some dependants and members of the household. In NSW a claim must generally be made within 12 months after the death. The court can also make orders against property outside the estate (known as “notional estate”) in some cases. We act for claimants and for executors defending claims.
Challenging a will
A will can be challenged if the person lacked the mental capacity to make a will, did not know and approve of its contents, was subject to undue influence, or if it was not properly signed and witnessed. These cases depend on evidence, so get advice early.
Frequently asked questions
What happens if there is no will?
The estate passes under the intestacy rules in the Succession Act 2006 (NSW), which set out who inherits in a fixed order. The result may not be what the person would have wanted, and blended families can be badly affected.
Is a homemade or online will valid?
It can be, if it was signed and witnessed correctly. Many are not, or are unclear, which leads to cost and delay. We can review an existing will or prepare a new one.
Does every estate need probate?
Not always. Small estates with no real estate can sometimes be collected without a grant, depending on the requirements of the bank or other asset holder. We can tell you whether probate is needed.