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Wills and testamentary matters in Fairfield are governed by New South Wales law. A will is a legal document that records your intentions for how your assets should be distributed after you die and who should administer your estate. In New South Wales the formal requirements for making a valid will, the rules for intestacy when someone dies without a will, and the mechanisms for challenging a will are set out in state legislation and decided by courts such as the Supreme Court of New South Wales. Local services in Fairfield - including solicitors, community legal centres and the NSW Trustee - can help residents prepare, update and administer wills and related documents like enduring powers of attorney and advance care directives.
Many people can make a simple will without a lawyer, but legal advice is important in a number of common situations:
- You have a complex estate - business interests, trusts, farming property, significant assets, or overseas assets.
- Your family situation is complicated - blended families, stepchildren, dependent adult children, separated but not divorced spouses, or same-sex relationships with specific legal considerations.
- You want to reduce the risk of disputes after death - clear drafting, correct witnessing, and careful executor appointments help prevent contests.
- You are an executor and need help with probate, asset collection, debt payment, tax issues and final distribution of the estate.
- Someone is likely to bring a family provision claim - if you are an executor, beneficiary or someone who anticipates a claim under the Succession Act.
- You need to prepare related documents - enduring power of attorney, enduring guardianship or advance care directive - that coordinate with your will.
- Your will may be challenged due to concerns about capacity, undue influence or fraud.
- You want professional advice about superannuation nominations, jointly held property or how wills interact with commercial arrangements.
The key legal points relevant to wills in Fairfield reflect New South Wales law:
- Formal requirements - Under NSW law a will should be in writing, signed by the testator (the person making the will) in the presence of two or more witnesses who also sign. Witnesses must be competent adults and should not be beneficiaries or spouses of beneficiaries to avoid problems.
- Testamentary capacity - To make a valid will the testator must have the mental capacity to understand the nature and effect of the will, the extent of their assets and the claims that may be made on their estate.
- Revocation and changes - Wills can be revoked by making a later will or by deliberate destruction. Minor changes can be made by a properly executed codicil, or by making a new will.
- Intestacy rules - If someone dies without a valid will, the Succession Act sets out how their estate is distributed to spouses, de facto partners, children and other relatives.
- Family provision claims - Eligible persons can ask the court to make provision from an estate if the will does not make adequate provision for them. In NSW such claims are governed by the Succession Act and there are strict time limits to bring a claim.
- Probate and administration - Executors normally apply to the Supreme Court of NSW for probate to gain authority to deal with estate assets. If there is no will, an administrator can be appointed through letters of administration.
- Assets outside the estate - Jointly owned property passes by survivorship and does not form part of the deceaseds estate for distribution under the will. Superannuation death benefits may be paid outside the estate unless there is a binding nomination that directs payment to the estate.
- Enduring powers and guardianship - Enduring powers of attorney and enduring guardianship in NSW allow people to appoint trusted persons to make financial or health decisions if they lose capacity. These documents should be consistent with estate planning.
No - there is no legal requirement to use a lawyer to make a will. However legal advice is strongly recommended where your circumstances are not simple, where you want to minimise the risk of successful challenges, or where you need coordinated estate planning with trusts, businesses or superannuation. A lawyer will ensure the will meets NSW formal requirements and reflects your intentions clearly.
A valid will in NSW should be in writing, signed by the testator in the presence of two or more competent adult witnesses who also sign the document. The witnesses should not be beneficiaries or partners of beneficiaries. The testator must have testamentary capacity and the signature should show the testator intended the document to be their will.
An executor is the person you appoint to administer your estate. Most adults can act as executor, including family members, friends or a professional like a solicitor or the NSW Trustee. Duties include obtaining probate if needed, collecting assets, paying debts and taxes, keeping records, and distributing assets to beneficiaries according to the will.
If you die intestate (without a valid will) your estate will be distributed under the NSW intestacy rules in the Succession Act. The distribution depends on your surviving family - spouse or de facto partner, children, parents and other relatives. An administrator must be appointed to manage the estate, usually someone eligible under the legislation.
Yes. Common grounds for challenging a will are lack of testamentary capacity, undue influence, fraud or that the will was not properly executed. Additionally eligible persons can bring a family provision claim if they have not been adequately provided for. Family provision claims must generally be brought within 12 months of the grant of probate or letters of administration.
In New South Wales the usual time limit to bring a family provision claim is within 12 months from the grant of probate or letters of administration. The court has limited power to extend this period in exceptional circumstances, but extensions are not guaranteed and early legal advice is essential if you think you may have grounds for a claim.
Usually not. Property held as joint tenants passes by right of survivorship to the surviving joint owner and does not form part of the deceaseds estate for distribution under the will. It is important to consider how you hold property when planning your estate, because joint ownership may override your testamentary wishes.
Superannuation death benefits are treated differently from estate assets. Trustees of super funds must follow the fund rules and any valid binding nomination when deciding who receives the death benefit. A binding nomination to the trustee can direct payment to a nominated beneficiary or to the estate. If the death benefit is paid outside the estate, the will may not control that asset.
You can change your will by making a new will that expressly revokes earlier wills, or by creating a codicil - a formal document that amends the existing will. Any change must meet the same formal witnessing and signing requirements as a will to be valid. Destroying or cancelling a will intentionally can also revoke it, but that approach carries risk and legal advice is recommended.
Store your will in a safe but accessible place and tell the executor where it is kept. Common storage options include with your solicitor, a bank safe deposit box, or the NSW Trustee if you use their services. Do not leave your will in an unknown or unsecured place. Provide details to your executor and keep a record of any passwords or access instructions they may need.
The following bodies and services can help residents of Fairfield with wills and estate planning:
- NSW Trustee - provides will making, acting as executor or administrator, and information about estate administration.
- Supreme Court of New South Wales - Probate Office handles probate and letters of administration applications.
- Law Society of New South Wales - a way to find accredited solicitors experienced in wills and estates.
- Legal Aid NSW and local community legal centres - provide free or low-cost legal advice for eligible people, including some wills and estate matters.
- NSW Department of Communities and Justice - information on guardianship, powers of attorney and capacity issues.
- Local Fairfield community legal services and elder law clinics - offer practical assistance tailored to the local community.
If you need legal assistance with a will or estate matter in Fairfield follow these practical steps:
- Gather documents - make a list of assets, liabilities, superannuation, insurance policies, business interests and any existing estate planning documents.
- Decide key appointments - choose an executor, backup executor, guardians for minor children if relevant, and attorneys for financial and personal decisions.
- Seek tailored legal advice - contact a solicitor experienced in NSW wills and estates to discuss your circumstances and get a draft that meets legal formalities.
- Make and sign the will correctly - ensure proper witnessing and keep clear records of the signing process to reduce future disputes.
- Review periodically - update your will after major life events such as marriage, separation, birth of children, acquiring or selling significant assets, or moving interstate or overseas.
- Store and communicate - keep the original will in a safe place and let trusted people know how to access it when needed.
If you are on a limited budget consider contacting local community legal centres or Legal Aid NSW to find out if you qualify for free or low-cost advice. For urgent estate administration issues contact a qualified wills and estates solicitor in Fairfield to protect the estate and meet court timeframes for probate or contesting a will.
