Q & A - Wills and Estate

Q: What is the role of an executor of a will? If I’ve been appointed as an executor, what should I do?
A:

When someone dies, an executor is the person appointed by the will to administer the estate. Put simply, this involves making sure their debts are paid and that their assets and possessions go where the deceased wanted them to. As executor, the first thing you will need to do is to make a list of everything the deceased owned as well as any payments or assets they were entitled to. Then, you may need to do the following:

  1. Apply for probate;
  2. Pay fees and debts; then
  3. Distribute the assets.

Q: If my Wife or Husband passes away, do I get everything he owns?
A:

It depends on what is written in the Will. If there is no Will, then intestacy rules apply. Two of the rules are as follows:

  1. If the deceased leaves a spouse but no children, the spouse is entitled to the whole of the estate.
  2. If the deceased leaves a spouse and children and the children are all also children of the spouse, the spouse is entitled to the whole of the estate.

Q: Who can make a will?
A:

At common law, the testator must:

  1. Be of sound mind, memory and understanding.
  2. Know and approve of the contents of their will.
  3. Intend the document to constitute their will.
  4. Not being acting under the undue influence of another.
  5. Not be acting as a result of fraud.

A will made by a minor is not valid unless the minor meets some special requirements in the Succession Act.


Q: What are the requirements for a valid will?
A:

According to the Succession Act 2006 (NSW), a valid will must satisfy the following requirements:

  1. the testator must be over 18 years old and of full legal capacity and good state of mind;
  2. the will must be in writing;
  3. the testator must sign the will in the presence of at least two witnesses or direct someone to sign the will in the presence of at least two witnesses;
  4. the testator’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time;
  5. the two witnesses must attest and sign the will in the presence of the testator;
  6. the testator’s signature must be made with the intention of executing the will.

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