Let’s just imagine The Last Jedi never happened and go back to more simpler times, say 1977 A New Hope . . . ah that’s better.

Did Han-Solo shoot first?  Did Greedo shoot first? Does it even matter?

The debate about whether or not Han-Solo shot first is to refer to George Lucas’ changes to the original Star Wars movie trilogy; more specifically a change to the A New Hope Special Edition, in the scene involving the characters Han Solo and Greedo in the cantina.

In the original version, after Han suggests that Jabba The Hutt would take the Millennium Falcon from him over his dead body, Greedo retorts, “That’s the idea.   I’ve been looking forward to this moment for a long time.”

Han replies, “Yes, I bet you have” and proceeds to shoots Greedo under the table while Greedo is pointing a blaster at him. However, in the Special Edition, Greedo shoots at Han and misses, without explanation, from point-blank range, and then Han shoots him. The scene was later altered again to have Han and Greedo shooting at almost the same time (though Greedo still shoots first), with Han dodging out of the way of Greedo’s shot.

It is clear the changes were made to avoid the conclusion that Han was a murderer, not a tag one wants from the, eventual, scoundrel-hero.  The central objection to the changes are that it weakens and compromises Han’s rebellious and ruthless nature.

Putting that aside, the generally accepted truth from fans of the franchise is that Han Solo kills Greedo in a bit of pre-emptive, badass self-defense. Everyone is right, right?

But is that legal?

To answer that question, we need look no further than the laws we accept in society for self-defense . . . whether this applies in a galaxy far-far away is impossible to know, yet for the sake of this argument lets assume that it is.

The answer lies within the 15 Criminal Law Consolidation Act 1935 (SA).  A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment).

If someone charged with an offence, say Han was charged with murder, and he raises a defence under this section, it is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

This will be a complete defence to an offence, including murder, as long as the force (no pun intended) used was, in the circumstances, as the defendant genuinely believed them to be, reasonably proportionate to the threat they genuinely believed to exist.

In other words, if Han genuinely believed he was about to be shot by Greedo and he shot first to defend himself, killing Greedo, then he was not guilty of murder.  Evidence to suggest this was the case is that Greedo was pointing his blaster at Han during their conversation, they were within the cantina (where Obi-Wan Kenobi tells Luke “You will never find a more wretched hive of scum and villainy”) and Greedo intimates, by his words, that he is about to kill Han.

This would be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.

In other words, Han would not be guilty of murder but guilty of manslaughter if, despite believing that his actions were necessary, shooting Greedo was disproportionate to the actual threat Greedo posed.  For example, if Greedo held a knife and not a blaster.

However, there is an exception to reasonable proportionality rule, in home invasions.

In the case of a home invasion acting for a defensive purpose or to defend property can be a complete defence to murder, even if the defendant’s conduct was not objectively reasonably proportionate to the perceived threat.  What is required is that the defendant genuinely believed that the victim was committing or had just committed a home invasion.

So, in summary, it appears like Han Solo was perfectly justified in blasting Greedo in the cantina without criminal repercussions . . . that would be, of course, if he didn’t flee Tatooine like the audiences from a Last Jedi screening!

For a long time now I have been an outspoken critic of the trend for governments to move towards heavy taxes being imposed on Australians for probate services.  Last April (2016) I responded to the latest Probate fee increase implemented by the South Australian Government.  The fee increase, was, as I went on to explain, “…so exorbitant there can be no other way to classify it other than the reintroduction of a Death Tax.”.

Many years ago, in South Australia, we had a Death Tax (referred to as Death Duties).  In South Australia, these duties were paid upon an individuals’ death, and being based upon the value of the estate, were a reliable source of revenue for the government.  Death Duties were eventually abolished in 1980 and were replaced with a more modest (and flat rate) probate filing fee.  As I mentioned in my article, last April these fees were increased, along with the introduction of a sliding scale for the amount that is required to be paid (dependent on the size of the estate).  While it is not actually referred to as being a ‘Death Duty’ it is hard to see it as being any different to the one that was abolished many years before.

The United Kingdom has recently announced a significant change to how fees will be charged in relation to the administration of estates.  Up until now fees for the filing of probate was a standard and flat rate of £155.  However, from May 2017, this is all set to change with the implementation of a sliding scale for fees, solely dependent on the value of the estate in question.  While smaller estates, those less than £50,000 in value, are released from paying probate fees; the vast majority of estates will be slugged!  For instance, a relatively small estate, one that exceeds £300,000 (yet is less than £500,000), will pay £1,000 in fees.  Even more staggering is that the average estate, that where assets sit between £500,000 and £1M, will pay fees of £4,000.  The sliding scale grows in increments with all estates in excess of £2M being charged fees totalling £20,000.

Make no mistake, this is a blatant attempt on behalf of the UK government to reintroduce a Death Tax.

While solicitors in the UK (and even Australia) are currently racing to settle existing estates before the May deadline, the more interesting issue is the impact that this move will have on our own State Government.  From May 2017, the UK Probate Filing fees will exceed those currently in place in South Australia.  Clearly, we should all be concerned that the UK fee increase will act as an enabling influence for our own government to increase fees to this same (or even greater) level.

Are you cringing yet?  If not, you should be.

Of course, I’d urge all South Australians to join with me and place pressure on our current State Government to ensure that the current fee structure is placed on hold and that immediate steps are taken to return to a fairer system that charges a reasonable flat fee for probate filing services.

A recent Revenue Ruling by the Commissioner of State Taxation has now made clear that the use and implementation of including the phrase ‘and or nominee’ in a contract, most likely for the purchase of land, is no longer required.

A word of warning. If you think it is now safe to begin executing contracts for the purchase of land on behalf of family and friends and so on, think again. Signing a contract for the purchase of land, or any contract for that matter, is a serious step and should not be undertaken without considerable thought and legal advice. If the intended purchaser, perhaps your friend, pulls out of the deal or fails to settle, the vendor will sue YOU. After all, you signed the contract and until settlement occurs you are required at law to fulfill all of the purchaser obligations, including to settle and purchase the property.

First things first, what is ‘and or nominee’ and why was it frequently used?  By using the phrase ‘and or nominee’ after the name of a purchaser, allowed one party to sign the physical contract for the purchase of land, whilst reserving the ability to register the actual owner of the property recorded on the title deed in another.

The best example is the purchase of property at an auction.  Once the bidding has ended the highest bidder must immediately execute the contract for the purchase of the land. On many occasions, the intended purchaser may not be able to physically attend the auction but has given authority and instructions to a third party to bid and execute the contract on their behalf.  In such an instance, the actual purchaser, Mr X, authorised and instructed the winning bidder, Mrs Z, to execute the contract. The name of the purchaser would be recorded as Mrs Z and or nominee.  Shortly after the contract was signed the letter of agency is produced and the Memorandum of Transfer is drafted with Mr X appearing as the actual purchaser.  What is often overlooked is that the letter of agency must pre-date the execution of the contract.

Another avenue for those that have executed a contract for the purchase of land to own it in another name is to assign the contract by way of a deed, another short written contract. In our previous example, if the letter of agency did not exist, or perhaps Mrs Z and Mr X wish to hold the land in a company which has not yet been created, Mrs Z can assign her interest in the contract by deed to the new company.
When it comes to Stamp Duty, a State assessed tax enshrined in the Stamp Duties Act 1923, which is charged on certain documents and transactions (usually where a transfer of ownership has occurred), it has been the previous practice of the Commissioner for State Taxation to require evidence of duty being payable not only on the Memorandum of Transfer but also the Deed of Assignment.  Stamp Duty on the Deed of Assignment is paid on the amount of the deposit paid.

Back to the new ruling. The Commissioner of State Taxation has confirmed he will adopt and recognise the existing common law that a purchaser recorded in a contract may direct (without the need for a deed of letter of agency) the vendor who to transfer the property to.  This will now avoid the need for letters of agency, Deeds of Assignment and the use or overuse of the phrase and or nominee.

Signing any sort of legal document without legal advice is risky. You should always seek professional advice on all legal documents before signing. Welden & Coluccio Lawyers are here to assist and can provide expert legal advice on a range of written contracts including the purchase, or sale, of real estate property.

For many Australians times are financially tough.  It is quite a source of frustration to know that you have a stash of money growing in a super fund, yet are struggling with mortgage repayments and the rising costs of living.  Add to this an unexpected illness or significant misfortune and you may find yourself asking the question, “Can I get my hands on my Super early?”.

In most cases, you are not able to withdraw your superannuation until you reach your ‘preservation age’ and retire.  Currently the date you reach this age will depend on your date of birth.  See table below:

It all gets a bit confusing, a situation that is made more so by the reality this table is likely to continue to change as the government make tweaks to the rules about preservation ages.  I agree, a very frustrating matter.

While accessing your superannuation early (before you retire), is for the most part, not recommended (after all you will be needing this to fund your retirement), there are some situations where accessing this early (or part of this) is permissible by law.

Strategy 1: You Commence a TRIP Plan (a transition-to-retirement pension):

Once you reach your preservation age, you may continue to work in some capacity, but can commence a super pension.  This means that you may withdraw no more than 10 per cent of your account balance in the form of pension payments each year.  However, in most cases these payments can’t be converted into lump sum payments.  Furthermore, before activating this strategy it is highly recommended that you seek the advice of a financial planner to determine if this is a good strategy in your circumstances.

Strategy 2: The Preserved Amount of Superannuation Benefits is Less Than $200

You can access the balance of your preserved benefits should you leave a job and employer contributions for that job total less than $200.  I agree it is not an amount that is likely to make a huge difference to your financial situation… more of a small bonus.

Strategy 3: You Experience Severe Financial Hardship

Severe financial hardship, as determined by the government (no not your standards), can satisfy special conditions that may allow you to receive a portion of your superannuation benefits early.

This may be deemed appropriate if:

• You receive Commonwealth Government income support in the form of unemployment benefits for at least 26 weeks continuously. If the trustee of your super fund agrees that you are unable to meet everyday living expenses you may be granted a single payment of $10,000 (including tax) in any 12 month period.
• If you have reached your preservation age and have been receiving government income support for at least 39 weeks, you may be eligible to receive your entire superannuation benefit.

Strategy 3: Compassionate Grounds

Part of, or all, of your preserved benefits may be released to you on compassionate grounds for extenuating circumstances.  This might include you suffering a life-threatening illness or perhaps the bank wishing to take possession of your home (due to overdue loan repayments).  Similarly, you may be able to access these funds to pay for a funeral, medical expenses or palliative care.  Should you, or one of your dependents be severely disabled, it may be possible to release these funds to allow for home or car modifications.

Strategy 4: Terminal Medical Condition

If you are diagnosed with a terminal medical condition, as defined by superannuation laws, you will be able to access your preservation early.  Should a terminal medical condition affect a family member you may still be able to access your preservation according to the release of funds on ‘Compassionate Grounds’ (see strategy 3).

Strategy 5: Temporary Resident Leaves Australia Permanently

In most cases, if you are a temporary resident of Australia, you may access your preservation when you permanently leave Australia.  However, specific conditions affect citizens of New Zealand, who in this situation will not be able to access the funds but may transfer these funds to a KiwiSaver account.

Strategy 6: Permanent Disability or Permanent Incapacity

Sufferers of chronic illnesses or serious disability may be entitled to make a claim as part of the permanent disability insurance policy that is often attached to their superannuation account.  Individuals who suffer permanent incapacity, that is that due to ill health it is unlikely that they will  ever be able to work in a job for which they are qualified, trained or have experience in, can access their superannuation entitlements early.

Strategy 7: Death

Upon your death, the superannuation fund pays your death benefit to your estate, and via this to your spouse, dependants and other nominated beneficiaries.  Because of this, it is imperative the correct beneficiaries are identified in the binding nomination through your superannuation fund.  It also follows that appropriate estate planning, via an Estate Specialist, is recommended to circumvent the potential for error through the careful perusing of your superannuation documents and the drafting of a legal Will.

Greg Welden was in Melbourne last week delivering a paper via ‘Live-video-Webinar’ in conjunction with the Television Education Network.  The topic of the paper was ‘Superannuation and Estate Planning’.  This event will be followed up next week with the same paper being delivered in person at the Eleventh Annual Estate Planning Conference held at the Langham Hotel in Melbourne. 

While participation in such an event is a massive honour that recognises Greg Welden’s years of experience and deep wealth of knowledge as an estate specialist; preparation for such events is an intensive process.  However, as Greg explains, “Opportunities such as this enable me to synthesise and deepen all that I have learned about estate law over the past 18 years.  Of course, presenting at National conferences also assists to raise the profile of my chosen area of law, while contributing significantly to the broader legal community.”

I’m sure that all our professional colleagues, clients, and supporters will join with the team at Welden & Coluccio Lawyers, to congratulate Greg on his achievement and wish him all the very best for a successful presentation next Thursday.

Celebrities are not immune from this either, take for example the ‘out of date’ Will of Heath Ledger.

Everyone knows they should have a Will.  Whether everyone actually has one is a different thing altogether.  Whether it be apathy, laziness or fear of death, an alarmingly large number of adults still do not have a Will.

In certain circumstances it can be even more dangerous to have a Will that is out of date.  I’ve seen some so old, that the guardians chosen for minor children is irrelevant; because those very children are now aged in their 40’s!

A more serious consequence arises if a Will is not updated to take note of, or cater for, a change in personal circumstances.

Heath Andrew Ledger died tragically on 22 January 2008 aged 28 following accidental intoxication from prescription drugs.  A few months before his death, Ledger had finished filming his (well-deserved) Academy Award winning performance as the Joker in The Dark Knight.  After performing roles in Australian television and film during the 1990s, Ledger left for the United States in 1998 to further develop his film career starring in 10 Things I Hate About You (1999), The Patriot (2000), A Knight’s Tale (2001), Ned Kelly (2003) and Brokeback Mountain (2005).

In 2004 Ledger met and began dating actress Michelle Williams, and their daughter, Matilda Rose was born on 28^th October 2005.  Ledger and Williams ended their relationship in 2007 but remained on good terms until his death.

Despite his celebrity status, wealth of press agents, professional assistants, financial advisors and hangers-on; no one deemed it worthwhile (or if they did he didn’t listen/act) to update his Will.  The last one prepared in 2003 did not include his daughter.

A Will remains valid unless it is found to be a forgery or completed in circumstances that give rise to a serious suspicion that the Will maker was not of sound mind when signing it.  That is to say, that despite an obvious omission, the Will, on the face of it, is valid and the directions that appear therein must be carried out.

Celebrity Gossip website TMZ obtained a copy of Ledger’s Will and can be viewed here.

The Will divides what was likely to be a very large estate between his sisters and parents.

By all accounts, it appears that the lawyers were not called in, as so commonly occurs in Hollywood (perhaps the Aussie influence).  The Ledger family have openly admitted they will be providing for both Matilda Rose and Michelle Williams in whatever way they can.

It is worth noting that if the Ledger family were not so generous, then an inheritance claim  would have been the likely outcome.  In this situation, Michelle Williams, as the guardian of young Matilda Rose, would be left to take action in Court, suggesting that Ledger’s daughter was left without adequate provision.

Here is a fun fact.  If Ledger died without a Will at all, his daughter Matilda Rose would have been the sole beneficiary of his estate (assuming an estate distributed in South Australia).  An issue would arise as to who, until his daughter turned 18, would control the fund.  However, an out of date Will can have even more serious consequences than having no Will at all.

It is imperative that you update and regularly review your Will and other associated documents after any change of personal circumstances including marriage, divorce, new partners, children, death in the family or the purchase/sale of significant assets.

Good advice from experts in the field, who remain up to date on legislative changes and drafting trends, remains critical to establishing an effective and thorough estate plan.

Come and visit Jason Coluccio or myself, Greg Welden, at our office in Prospect to discuss your estate plan and how we might assist you or answer any of your questions.

I say and write that repeatedly when speaking with new clients, current clients, friends or the public when presenting seminars or information sessions.  So why do we not think that celebrities don’t have a Will?  Of course they do.

Celebrity Wills range from the complex, think Michael Jackson, to non-existent, Amy Winehouse or, (would you believe it?) Abraham Lincoln (who coincidentally was a lawyer himself).

In this series I take a look at the Wills of the famous, starting with the sad and recent departure of Robin Williams.

Robin McLaurin Williams died on 11^th August 2014 aged 63 after a long history with depression. Williams started as a stand-up comedian in San Francisco and Los Angeles in the mid-1970s and rose to fame as Mork in the sitcom Mork & Mindy.  Other notable films include Popeye (1980), war comedy Good Morning, Vietnam (1987), drama Dead Poets Society (1989), the animated musical fantasy Aladdin (1992) and Good Will Hunting (1997).

In 1998, Williams won the Academy Award for Best Supporting Actor for his performance in Good Will Hunting.

Ordinarily, after the death of such a talent movie producers, studio and television executives clamour to re-issue old footage, found footage and new footage for a quick buck.  Not so with Williams.

In a unique legal move, Williams has banned the use of his appearance for a period of 25 years after his death.  Though not strictly speaking, comprising part of his Last Will and Testament, Williams transferred, upon his death, all rights to his identity – name, voice, signature, photograph, likeness and right of privacy/publicity – to a not for profit organisation the Windfall Foundation and cannot be used until 2039.

A Trust was created that controlled Williams’ identity with the man in sole control of that Trust, it was the innovative thinking to hard-wire a transfer of his identity and control of the Trust upon his death that has not yet been seen and may pave the way for other celebrities to follow suit and preserve their greatest asset and benefit charitable institutions.

It is thought that the Trust was created, not long before his death, in such a way to avoid potential significant taxation problems associated with deceased estates.  It is taxation, including significant penalties totalling US$700 Million facing the estate of the late Michael Jackson that continues to cripple what might have been a substantial benefit, rather than noose, for his children.

Williams left behind a widow and 3 children, Zelda, Zachary and Cody.

Taxation considerations are ever present when considering how to construct and draw your Will.  Will drafters must sometimes think outside the box to pre-emptively avoid problems before they arise.

Good advice from experts in the field who remain up to date on legislative changes and drafting trends remains critical to establishing an effective and thorough estate plan.

Come and visit Jason Coluccio or myself, Greg Welden, at our office in Prospect to discuss your estate plan and how we might assist you or answer your questions.

Take a look at the original Trust Deed here.

Download our Wills Brochure here.

If I had a dollar for every time someone said this to me I could retire right now.  You see everyone thinks that their circumstances are straightforward and it follows then that they believe that their Estate needs will be easily satisfied with either a “cheap Will”, a blank template where you enter names and addresses; or, even worse, a DIY Will Kit.

Truth is, few Wills actually are straightforward, and a generic Will rarely ‘cuts the mustard’ for most people.  In fact, there are a tonne of situations that can make drafting a Will a complicated process best undertaken by an expert.  Consider the following scenarios and ask yourself if any of these situations apply to you:

–          Have you ever been divorced or separated?

–          Following a separation or divorce have you remarried or have you commenced co-habiting with another person?

–          Do you have children to two or more different people?

–          Are you employed by the government and have superannuation with Super SA?

–          Do you own real estate, wholly or with another person(s)?

–          Have you ever been declared bankrupt?

–          Have your children ever been declared bankrupt?

–          Are you concerned that assets will be lost to children following a divorce?

–          Following your divorce are you concerned about what might happen if your ex-spouse remarries?

–          Do you own a business, wholly or with another person(s)?

–          Do you own shares?

–          Are you a professional and thus open to the risk of litigation (eg any professional, especially Lawyers, Doctors, Accountants and          Financial Advisers)?

–          Do you have children who are minors?

–          Are you uncertain if you have a death benefit associated with your superannuation fund?

–          Do you know who your beneficiary nominated in your superannuation is?

Each of the situations described above requires a high degree of personalisation when it comes to the drafting of a Will.  This is not possible to do with a generic Will and definitely not possible with a DIY Will kit.  Furthermore, some of these situations will necessitate drafting of a Testamentary Trust.  This specific type of Will is best undertaken by an Estate Specialist, with many in the legal profession unskilled in this area.

There are many risks associated with generic and DIY Wills.  In a nutshell they often prove grossly inadequate when it comes to meeting the needs of the ‘average person’, with the potential for unintended errors that may cost your beneficiaries large sums in legal costs.  At Welden & Coluccio Lawyers, we have the know-how to ensure that every aspect of your circumstances is taken into consideration for the protection of your beneficiaries and your wishes.

Each morning I like to watch a few minutes of Sunrise.  At least I do, until I realise that the kids are no-where close to being ready for school (and the grumbling ensues).  At any rate, yesterday morning, I happened to catch a report about the rise of ‘Mum and Dad Banks’.  This is the term that has been coined to describe a situation when parents provide money or security to assist their children to jump onto the property ladder. . . although usually not at the bottom (as most of us did, and perhaps where they should).

The story continued, suggesting that a whopping 52 percent of all first home buyers in this country required some sort of financial assistance from their parents in order to secure their first foothold on the property ladder.

While the story was primarily focussed upon housing unaffordability throughout Australia with ‘Family Pledges’ as being a realistic solution to this problem, I was thinking ‘Oh no! Please don’t go there.’

Let me state, from the outset, that Family Pledging is a risky strategy.

So what exactly is a ‘Family Pledge’?

Essentially it is a guarantee.  It is a guarantee that you (the parent), should your offspring fail to meet their financial obligations or find themselves in a situation where they are unable to make their loan repayments, will undertake to pay the debt.

In most cases, Family Pledges evolve like this.  Son or daughter finds the perfect property (often expensive and close to the CBD).  They approach the bank presenting their meagre savings and are swiftly declined.  The initial ‘No’ is soon replaced by a ‘Yes’ along with the provision that a family member (usually Mum and Dad), put up their home as a security for the loan.

In recent times, especially as house prices have risen, this has evolved to be an effective strategy used  by banks.  After all, they know how hard it is for parents to say no to their kids.

The nature of these pledges, I mean ‘guarantees’, is that the bank will demand that parents go and seek their own independent legal advice on the guarantee document they are about to sign.

Why?

Well, they know that there is a lot at stake if things go wrong and they are seeking to absolve themselves of all liability if it does.  Make no mistake the stakes are indeed high, the kind of situation that has Mum and Dad losing the very roof over their own heads.

While I’d like to say that we have parents beating down our doors asking for legal advice on such documents, the reality is it doesn’t happen.  Lawyers seldom, if ever, provide advice on these kinds of documents.  You see, parents want to help their kids.  More pertinently, and assuming that they believe their kids are financially responsible, they seem to believe that the main (and only) risk is that their kids will be remiss in their repayments.  Unfortunately, there is no ‘peace of mind’ to be found in this belief.  You see, even the most financially astute person can fall victim to relationship breakdown.  Yes, should your child and his partner separate, chances are they will not be able to afford the loan repayments and you will be called upon to pay off the huge interest that has accrued.  I mean, let’s face it, if they could they would not have needed you to go guarantor in the first place.

The bank knows that very few people will seek advice on such a document and will never even consider such a scenario or countless others (job loss, illness) all which have the potential to leave you in a precarious situation.

The bank always wins.

Always.

Consider this.  If your son has a $100,000 loan with the bank and has it paid down to $30,000 but THEN defaults on his payments, the bank may want YOU to repay the $20,000 credit card AND the $25,000 personal loan he has with the bank also.  It is all in the fine print.

An old gambler’s truth is that you should only gamble what you can afford to lose.  Can you afford to lose your family home?  Your retirement fund?

I thought not.

All contracts, loans, guarantees and other important documents should always be examined by a lawyer. Visit Jason Coluccio or myself, for this and any other property related issues so that if you do decide to sign, it is with eyes wide open to all the potential risks.

“My Great Aunt Edna just died and it seems she has listed me as her sole executor. I’m feeling quite overwhelmed and don’t know where to start.”

When a family member or close friend dies it is normal to feel a whole range of feelings ranging from grief to confusion. The news that you have been named as an executor may come as a surprise (although hopefully not), and will certainly heighten these emotions during what is already a busy time.

As a practicing Wills and Estate Specialist, it is not uncommon for me to receive telephone calls from next of kin on the very day that their beloved has died. At this time I like to reassure them that the important thing to do at this point is to spend time with family and friends, make funeral arrangements and (above all) celebrate the life of their loved one. Once the dust has settled, usually a few weeks down the track, is generally the best time to make an appointment to meet with a solicitor experienced in the management of Wills and Estates to discuss what needs to be done.

When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors – the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully.

“What is my job as executor?”

An executor has many important duties when acting on behalf of the estate of the deceased person. They include notifying banks and other organisations identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the grant of Probate from the Supreme Court of South Australia (or in another State).

“I’ve heard of Probate but I don’t really know what this is or what it entails on my behalf.”

A grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person.

There are two types of grants: Grants of Probate and Grants of Letters of Administration.

Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason.

All applications for grants must be in accordance with the Rules of Court which govern who is entitled to a grant and the manner in which the application must be made.

“When will I need to do this?”

Whether a grant is needed will depend on the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who that money should be paid and the grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.

If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the grant before it will transfer them.

A grant will be required if the deceased owned a house in his or her own nameor held an interest with another party as tenant in common. The Lands Titles Registration Office will not transfer land to another person without a grant. However, real estate owned by the deceased as a joint tenant with another person cannot and will not form the subject of a grant or part of the deceased estate as the surviving joint tenant(s) are automatically entitled to the property.

On the other hand if the deceased had very minimal assets it may not be necessary for the executor or administrator to apply for Probate.

“Wow, now I’m really feeling overwhelmed. What else do I need to know about this process?”

Yes, the process for apply to the Probate Registry seeking a grant of probate or Administration is very complicated and difficult for most lay people. The application may become even more difficult if;

• the validity of the last Will is in question,
• there is uncertainty as to what constitutes the last Will
• the intended last Will has been completed incorrectly (undated or signed wrong).

The list is endless. These problems may create significant delays in dealing with estate assets and finalising the role of the executor. For these reasons, it is always recommended that you speak to a solicitor concerning the Will of a deceased especially if you are named as an executor. Of course the good news is, that in the hands of a Wills and Estate Specialist, this process should seem relatively straightforward from where you stand.